^0 


REESE    LIBRARY 

OP   THK 

UNIVERSITY   OF   CALIFORNIA. 

Received K./2&.^^  _ .  _  i88^, . 

Accessions  No.  j^^9jJA Shelf  No.  _ 


Digitized  by  the  Internet  Arciiive 

in  2007  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.arcliive.org/details/courseoflecturesOOduerricli 


A  COURSE  OF   LECTURES 


CONSTITUTIONAL 


JURISPRUDENCE 


UNITED    STATES, 


!>«»-*  IVERED    ANNUALLY    IN    COLUMBIA   COLLEGE, 
NEW-YORK. 


V^iLLIAM  ALEXANDER  DUER,  LL.D., 

LATE    PRESIDENT   OF   THAT   INSTITUTION. 


mir' 


HARPER    &    BROTHERS,    PUBLISHERS, 

329    ±     331     PEAUL     STREET, 
FRANKLIN    SQUARE. 

1S74. 


r^ 


Entered,  according  to  Act  of  Congress,  in  the  year  1843,  by 

Harper  &  Brothers, 
In  the  Clerk's  Office  of  the  Southern  District  c  f  New-Yoju. 


JAMES    KE 


My  dear  Sir, 
Relying  for  forgiveness  upon  "  an  uninterrupted  pos* 
session''^  of  your  friendship  "  of  more  than  twenty/  years, 
under  colour,'"  at  least,  "  of  title,'''  I  venture,  without 
your  knowledge  or  consent,  to  inscribe  to  you  a 
Treatise  on  the  Constitutional  Jurisprudence  of  the 
United  States.  In  this  act  I  do  but  make  restitution 
of  your  own  property,  or,  perhaps,  to  exprj^ss  myself 
more  properly,  tender  payment  for  the  use  of  it ;  for 
you  will  soon  discover  that,  next  to  the  contempo 
raneous  expositions  of  the  authors  of  "The  Feder- 
alist," I  have  drawn  my  materials  more  largely  and 
freely  from  your  "  Commentaries"  and  the  lucid  and 
deep  investigations  of  the  late  Chief-justice  Mar- 
shall than  from  any  other  source.  And  although 
the  responses  of  that  great  oracle  of  the  Constitution 
have  ceased,  yet  may  we  hope  that  the  inspiration 
will  not  be  withdrawn  while  your  corresponding  ad- 
judications and  opinions  shall  be  quoted  as  authority 
in  the  court  wherein  he  so  long  and  auspiciously  pre- 
sided. 


iV  DEDICATION. 

That  you  may  continue,  my  dear  sir,  lo  enjoy  to 
the  last  the  same  vigour  and  activity  of  mind  and 
body  which  distinguishes  you  at  an  age  approaching 
the  utmost  limit  assigned  to  man's  earthly  pilgrimage, 
is  the  fervent  prayer  of  your  faithful,  constant,  and 
hereditary*  friend, 

W.    A      DuERo 

Morristown,  N.  /.,  May  1,  1843. 

*  See  Appendix  Ik 


PREFACE. 


In  submitting  the  following  work  to  the  public, 
there  seems  a  necessity,  as  well  as  a  propriety,  in  of- 
fering a  preliminary  explanation  of  its  character  and 
design  ;  especially  as  he  whose  name  it  bears  claims 
neither  the  merit  of  originality  for  his  production, 
nor  the  title  of  author  for  himself.  The  present  pub- 
lication consists  substantially  of  the  course  of  Lec- 
tures on  the  Constitutional  Jurisprudence  of  the  Uni 
ted  States,  delivered  annually  to  the  Senior  Class  in 
Columbia  College,  while  he  had  the  honour  of  pre- 
siding in  that  venerable  and  noble  institution.  The 
"  Outlines"  of  those  Lectures  were  published  some 
years  ago,  at  the  request  of  "  The  American  Lyce- 
um," an  association  consisting  principally  of  persons 
engaged  in  the  practical  duties  of  instruction,  who 
conceived  that  the  study  of  our  national  Constitu- 
tion might  be  introduced  with  advantage  into  the 
general  system  of  public  education.  That  little 
treatise,  accordingly,  appeared  in  a  form  adapted  to 
the  views  of  those  who  had  suggested  its  prepara- 
tion ;  which  were,  fitness  as  a  text-book  for  lectu- 
rers, a  class-book  for  academies  and  common  schools, 
and  a  manual  for  popular  use.  Except,  therefore, 
*  as  to  method  and  arrangement,"  as  was  observed 


VI  PREFACE. 

in  issuing  it  from  the  press,  "  there  could  be  little 
scope  for  originality  in  a  work  of  which  the  essen- 
tial value  must  depend  on  the  fidelity  with  which  the 
provisions  of  the  Constitution,  the  legislative  enact- 
ments for  giving  it  effect,  and  the  judicial  construc- 
tion which  both  have  received,  are  stated  and  ex- 
plained." The  same  remark  may  be  repeated  in  ref- 
erence to  the  present  publication,  and  a  similar  dis- 
claimer made  as  to  its  pretensions  to  originality.  On 
the  present  occasion  the  author  has  again  "  implicit- 
ly followed  those  guides,  whose  decisions  are  obli- 
gatory and  conclusive,  upon  such  points  as  have  been 
definitively  settled"  by  judgments  of  the  Supreme 
Courts  of  the  United  States  ;  while  "  upon  questions 
which  have  arisen  in  public  discussion,  but  have  nei- 
ther been  presented  for  judicial  determination,  nor  re- 
ceived an  approved  practical  construction  from  the 
other  branches  of  the  government,  he  has  had  re- 
course to  those  elementary  writers  whose  opinions 
are  acknowledged  to  possess  the  greatest  weight,  ei- 
ther from  their  intrinsic  value,  or  their  conformity 
with  the  general  doctrines  of  the  authoritative  ex- 
pounders of  the  Constitution ;  and  in  the  absence  ol 
both  authority  and  disquisition,  he  has  ventured  to 
rely  on  his  own  reasonings,  and  has  advanced  his 
own  opinions  so  far  only  as  he  conceives  them  to  be 
confirmed  by  undeniable  principles,  or  established  by 
analogous  cases." 

The  remaining  sources  drawn  from  on  that  occa- 
uion,  have  been  resorted  to  again  ;  and  he  now  re^ 


PREFACE.  Vi: 

peats  llie  acknowledgment  of  his  obligations,  not  onlv 
to  the  illustrious  triumvirate  whose  combined  labours 
were  bestowed  on  the  "  Federalist,"  to  Chief-jus- 
tice Marshall,  and  to  Chancellor  Kent,  but  also  to 
Mr.  Rawle's  "  View  of  the  Constitution,"  and  to  the 
elaborate  and  voluminous  "  Commentaries"  of  the 
learned,  ingenious,  and  indefatigable  Mr.  Justice  Sto- 
ry. The  same  observation  may  be  repeated  as  to 
the  different  views  taken  in  this  work,  as  well  as  in 
its  precursor,  from  those  exhibited  in  the  elementary 
treatises  of  the  two  former  ;  with  regard,  in  the  one 
case,  to  the  supremacy,  and,  in  the  other,  to  the  per- 
petual  obligation  of  the  Federal  Constitution.  On 
both  these  important  points  the  author  still  adheres 
to  principles  more  favourable,  as  he  believes,  to  the 
powers  and  stability  of  the  National  Government. 
He  did  not,  however,  at  that  time,  nor  does  he  now, 
venture  to  differ  from  such  eminent  jurists,  without 
being  supported  by  the  opinions  of  some  of  the  most 
distinguished  statesmen  of  the  day  of  different  par- 
ties— by  the  author  of  the  celebrated  Proclamation  of 
President  Jackson  against  the  anti-federal  proceed- 
ings in  South  Carolina,  and  the  speeches  of  Mr. 
Webster  in  vindication  of  its  doctrines  ;  nor  without 
being  sanctioned  by  the  judicial  authority  of  the  late 
chief-justice — expressly  upon  one  of  the  points  in 
question,  and  virtually  upon  the  other,  by  his  affirm- 
ance of  principles  which  it  involves,  and  by  which 
Its  decision  must  eventually  be  governed. 

In  again  referring  to  the  venerated  name  of  Chief- 


Vm  PREFACE. 

justice  Marshall,  the  author  can  but  rei««,rate  his 
former  wish  to  be  "  understood,  on  this  and  all  other 
occasions,  as  adopting  his  individual  opinions,  not 
less  from  deference  to  their  official  authority,  than 
from  the  conviction  wrought  by  the  luminous  and 
profound  reasonings  by  which  they  are  elucidated 
and  supported.  As  this  eminent  and  revered  judge 
has  himself  declared  it  auspicious  to  the  Constitution 
and  to  the  country  that  the  new  government  found 
such  able  advocates  and  interpreters  as  the  authors 
of  *  Thf,  Federalist,'  so  it  may  be  regarded  as 
one  of  the  most  signal  advantages  attending  its  ca- 
reer, that  its  principles  should  have  been  developed 
and  reduced  to  practice  under  a  judicial  administra- 
tion so  admirably  qualified,  in  every  respect,  to  ex- 
pound them  truly,  and  firmly  to  sustain  them."  Since 
this  feeble  tribute  to  his  wisdom  and  virtues,  this 
great  judicial  magistrate  has  been  summoned  to  the 
bar  of  a  higher  than  any  earthly  tribunal,  there  to 
receive,  we  may  be  certain,  that  justice,  tempered 
with  mercy,  which  was  the  exemplar  of  his  own  ad- 
ministration;  and  to  obtain,  as  we  may  hope,  from 
the  favour  of  his  God,  the  reward  due  to  his  public 
services  and  private  worth.  There  needs  no  monu- 
iient  to  perpetuate  the  memory  of  his  virtues  but  the 
record  of  his  services.  These,  too,  may  serve  as 
the  fairest  monument  of  the  great  political  party  of 
which  he  was  the  ornttment  and  the  boast.  But  if 
to  designate  the  spot  of  earth  consecrated  to  his  re- 
mains a  tablet  be  required,  let  it  be  as  simple  and 


PREFACE.  IX 

massive  as  was  his  mind^  and  let  it  be  inscribed, 
*'Here  lies  the  last  of  the  Federalists." 

Since  the  period  referred  to,  the  statesman  to 
whom  the  work  was  dedicated — the  last  surviving 
member  of  that  august  assembly  that  formed  tlic 
Constitution,  and  sole  remaining  luminary  of  thai 
bright  constellation  of  genius  and  talent,  which,  in 
vindicating  that  instrument  from  the  objections  of  its 
first  assailants,  succeeded  in  recommending  it  to  the 
adoption  of  the  people ;  he  who,  in  discharging  the 
highest  duties  of  its  administration,  proved  the  sta 
bility  and  excellence  of  the  Constitution  in  war  as 
well  as  in  peace,  and  determined  the  experiment  in 
favour  of  Republican  institutions  and  the  right  of  self- 
government  ;  and,  in  his  retirement,  raised  a  warning 
voice  against  heresies  in  the  construction  of  the  na- 
tional compact,  which,  for  a  moment,  threatened  to 
overthrow  it — has  also  disappeared  from  among  us, 
full  of  years  and  honours.  The  enumeration  of  such 
services  recalls  the  name  of  Madison  ;  and  great  as 
were  those  services,  honoured  as  was  that  name,  the 
brightest  glory  that  attends  them  both  springs  from 
the  association  of  his  genius,  his  learning,  and  his 
labours,  with  those  of  his  once  kindred  spirits,  Ham- 
ilton and  Jay.  *'Vita  enim  mortuorum,  vi  unitafor- 
tioTy  in  memoria  vivonim  est  posita,''^ 

Morristown,  N.  J.   Ist  May,  1843. 


B 


ANALYSIS. 


kntrodtiction. 
{  Detmhion  aM  origin  of  political  Constitutions,  as  derived, 

1.  From  tradition,  or  the  act  of  the  Government  itself. 

2.  From  written  fundamental  compacts. 
Either  of  which  may  be  formed, 

1.  On  a  simple  principle  of 

1.  Monarchy. 

2.  Aristocracy. 

3.  Democracy. 

2.  Or  combine  these  three  forms  in  due  proportions, 
by  means  of  the  principle  of  representation,  ap- 
plied, 

1.  To  the  powers  of  Government;  which  are, 

1.  The  Legislative. 

2.  The  Executive. 

3.  The  Judicial. 

2.  To  the  persons  represented  in  the  Govern- 
ment. 

I)    Foundations  of  representative  Governments  were  laid, 

1.  Partially,  in  the  British  Colonies,  in  which  were  es- 
tablished, 

1.  Royal  Governments. 

2.  Proprietary  Governments. 

2.  Universally,  in  the  American  States,  upon  the  estab- 
lishment of  independent  Governments,  which  secured 
the  enjoyment  of, 

1.  The  inalienable  natural  rights  of  individuals. 

2.  The  political  and  civil  privileges  of  the  citizens, 
designed  for  maintaining,  or  substituted  as  equiva- 
lents for,  natural  rights. 

III.  The  same  fundamental  principles  were  recognised  and 
adopted  upon  the  establishment  of  a  Federal  Government 
by  the  people  of  the  several  States. 

1 .  In  regard  to  the  principle  of  representation,  as  applied, 

1.  To  the  three  great  departments  of  Government. 

2.  To  the  individual  citizens  of  the  United  States, 
and  to  the  several  States  of  the  Union. 

2.  In  regard  to  the  distribution  of  the  powers  of  Govern- 
ment, as  the  Constitution  of  the  United  States  contains, 


XU  ANALYSIS. 

1.  A  general  delegation  of  the  Legislative,  Execu- 
tive, and  Judicial  powers  to  distinct  departments; 
and, 

2.  Defines  the  powers  and  duties  of  each  department 
respectively. 

OUTLINES  of  that  branch  of  Jurisprudence  which  treats  of 
the  principles,  powers,  and  construction  of  the  Constitution, 
are  therefore  to  be  traced. 
First.  With  regard  to  the  particular  structure  and  or- 
ganization of  the  Government. 
Second.  In  relation  to  the  powers  vested  in  it,  and  the 
restraints  imposed  on  the  States. 
T.  Of  the  structure  and  organization  of  the  Govern- 
ment, and  the  distribution  of  its  powers  among 
its  several  departments. 
i.  Of  the  Legislative  power,  or  Congress  of  the  United 
States. 

1.  Of  the  constituent  parts  of  the  Legislature,  and 
the  modes  of  their  appointment. 

1.  Of  the  House  of  Representatives. 

2.  Of  the  Senate. 

2.  Their  joint  and  several  powers  and  privileges. 

3.  Their  method  of  enacting  laws,  with  the  times 
and  modes  of  their  assembling  and  adjourning. 

2.  Of  the  Executive  power,  as  vested  in  the  President. 

1.  His  qualifications ;  the  mode  and  dur-ation  of 
his  appointment,  and  the  provision  for  his  sup- 
port. 

2.  His  powers  and  duties. 

3.  Of  the  Judicial  power. 

1.  The  mode  in  which  it  is  constituted.  . 

2.  The  objects  and  extent  of  its  jurisdiction. 

3.  The  manner  in  which  its  jurisdiction  is  distrib- 
uted. 

L  Of  the  Court  for  the  trial  of  Impeachments. 

2.  Of  the  Supreme  Court. 

3.  Of  the  Circuit  Courts. 

4.  Of  the  District  Courts. 

5.  Of  the  Territorial  Courts. 

6.  Of  powers  vested  in  State  Courts  and  Ma- 
gistrates by  laws  of  the  United  States. 

II.  Of  the  nature,  extent,  and  limitation  of  the  power's 
vested  in  the  National  Government,  and  the  re- 
straints imposed  on  the  States,  reduced  to  diflerent 
classes^  as  they  relate, 
1.  To  scciffity  from  Ibreign  danger;  which  class  com- 
preheiids  the  powers, 


ANALYSIS.  XUI 

1.  Of  declaring  war,  and  granting  letters  of  marque 

and  reprisal. 
•2.  Of  naaking  rules  concerning  captures  by  land 

and  water. 

3.  Of  providing  armies  and  fleets,  and  regulating 
and  calling  forth  the  militia. 

4.  Of  levying  taxes  and  borrowing  money. 

,  To  intercourse  with  foreign  nations ;  comprising  the 
powers, 

1.  To  make  treaties,  and  to  send  and  receive  am- 
bassadors and  other  public  ministers  and  con- 
suls. 

2.  To  regulate  foreign  commerce,  including  the 
power  to  prohibit  the  importation  of  slaves. 

3.  To  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the 
laws  of  nations. 

To  the  maintenance  of  harmony  and  proper  inter- 
course among  the  States,  including  the  pow- 
ers, 

1.  To  regulate  commerce  among  the  several 
States,  and  with  the  Indian  tribes. 

2.  To  establish  postoffices  and  postroads, 

3.  To  coin  money,  regulate  its  value,  and  to  fix 
the  standard  of  weights  and  measures. 

4.  To  provide  for  the  punishment  of  counterfeiting 
the  securities  and  public  coin  of  the  U.  States. 

t».  To  establish  a  uniform  rule  of  naturalization. 

6.  To  establish  uniform  laws  on  the  subject  of 
bankruptcies. 

7.  To  prescribe,  by  penal  laws^  the  manner  in  which 
the  public  acts,  records,  and  judicial  proceedings 
of  each  State  shall  be  proved,  and  the  effect  they 
shall  have  in  other  States. 

To  certain  miscellaneous  objects  of  genera]  utility ; 
comprehending  the  powers, 

1.  To  promote  the  progress  cf  science  and  the 
useful  arts. 

2.  To  exercise  exclusive  legislation  over  the  dis- 
trict within  which  the  seat  of  government  should 
be  permanently  established;  and  over  all  places 
purchased  by  consent  of  the  State  Legislatures 
for  the  erection  of  forts,  magazines,  arsenals, 
dockyards,  and  other  needful  buildings. 

3.  To  declare  the  punishment  of  treason  against 
the  United  States. 


XIV  ANALYSIS. 

4.  To  admit  new  States  into  the  Union. 

5.  To  dispose  of,  and  make  all  needful  rules  and 
regulations  respecting,  the -territory  and  other 
property  of  the  United  States. 

6.  To  guaranty  to  every  State  in  the  Union  a  re- 
publican form  of  government,  and  to  protect 
each  of  them  from  invasion  and  domestic  vio- 
lence. 

7.  To  propose  amendments  to  the  Constitution, 
and  to  call  conventions  for  amending  it,  upon  the 
application  of  two  thirds  of  the  States. 

5.  To  the  Constitutional  restrictions  on  the  powers  of 
the  several  States ;  which  are, 

1.  Absolute  restrictions,  prohibiting  the  States 
from, 

1.  Entering  into  any  treaty  of  alliance  or 
confederation. 

2.  Granting  letters  of  marque  and  reprisal. 

3.  Coining  money,  emitting  bills  of  credit, 
or  making  anything  but  gold  or  silver  coin 
a  lawful  tender  in  payment  of  debts. 

4.  Passing  any  bill  of  attainder,  expostfacU 
law,  or  law  impairing  the  obligation  of  con- 
tracts. 

5.  Granting  any  title  of  nobility. 

2,  (Qualified  limitations ;  prohibiting  the  States, 
without  the  consent  of  Congress^  from, 

1.  Laying  imposts  on  imports  or  exports,  oi 
duties  on  tonnage. 

2.  Keeping  troops  or  ships  of  war  in  time  ol 
peace. 

3.  Entering  into  any  agreement  or  compact 
with  another  State,  or  with  a  foreign  power. 

4.  Engaging  in  war,  unless  actually  invaded, 
or  in  such  imminent  danger  as  will  not  ad- 
mit delay. 

i\  To  the  provisions  for  giving  efficacy  to  the  powers 
vested  in  the  Government  of  the  United  States; 
consisting  of, 

1.  The  power  of  making  aL  laws  necessary  and 
proper  for  carrying  into  execution  the  othei 
enumerated  powers. 

2.  The  declaration  that  the  Constitution  and  laws 
of  the  United  States,  and  all  treaties  under  their 
authority,  shall  be  the  Supreme  Law  of  the  land. 

3.  The  powers  specially  vested  in  the  Executive 


ANALYSIS.  XV 

and  Judicial  departments,  and  particulaiy  the 
provision  extending  the  jurisdiction  of  the  latter 
*o  all  cases  arising  under  the  Constitution, 

4.  The  requisition  upon  the  Senators  and  Repre- 
sentatives in  Congress;  the  members  of  the 
State  Legislatures;  and  all  Executive  and 
Judicial  officers  of  the  United  States  and  of  the 
several  States,  to  be  bound  by  oath  or  affirma- 
tion to  support  the  Constitution  of  the  United 
States. 

5.  The  provision  that  the  ratifications  of  the  Con- 
ventions of  nine  States  should  be  sufficient  for 
the  establishment  of  the  Constitution  between 
the  States  ratifying  the  san'  e. 

Conclusion. 


CONTENTS. 


Fag« 

Dedication ,  lii 

Preface  v 

Analysis         ...  .        .        ,  xi 

LECTURE  I. 
Introductory .19 

LECTURE  IL 
Fundamental  Principles  of  the  Constitution  ...  41 

LECTURE  m. 
On  the  Legislative  Power 59 

LECTURE  IV. 
On  the  Executive  Power  81 

LECTURE  V. 
On  the  Judicial  Power 110 

LECTURE  VL 

On  the  Distribution  of  the  Judicial  Power  among  the  several 
Courts .        .  125 

LECTURE  VII. 
On  the  Powers  vested  in  the  Federal  Go\ernment  relative  to 
Security  from  Foreign  Danger 150 

LECTURE  VIIL 
On  the  Powers  vested  in  the  Federal  Government  for  regula- 
ting Intercourse  with  Foreign  Nations         .        .        .        .180 

LECTURE  IX. 

On  the  Powers  vested  in  the  Federal  Government  for  mamte- 
nance  of  Harmony  and  proper  Intercourse  among  the  States  210 

LECTURE  X. 

On  the  Powers  vested  in  the  Federal  Government  relative  t« 
certain  Miscellaneous  Objects  of  general  Utility         .        .  241 


XVIU  CONTENTS. 

LECTURE  XI.  Pag. 
On  the  Constitutional  Restrictions  on  the  Powers  of  the  sever- 
al States        271 

LECTURE  XII. 
On  the  Provisions  for  giving  Efficacy  to  the  Powers  vested  in 
the  Federal  Government 305 

Appendix  A. — Declaration  of  Independence  ....  337 
"  B. — Articles  of  Confederation  ....  342 
"  C. — Constitution  of  the  United  States  .  .  .  351 
"  D.— Correspondence  with  James  Madison  .  .  367 
"        E. — Proclamation  of  the  President  of  the  United 

States  of  the  10th  of  December,  1833   .        .        .373 
**        F. — Opinion  as  to  the  Constitutional  Validity  of  the 
Laws  of  New-York,  granting  exclusive  Privile- 
ges of  Steam  Navigation 394 

••  G. — Ordinance  for  the  Government  of  the  Territo- 
ry of  the  United  States  Northwest  of  the  River 
Ohio 400 


r^^^., 


//   Xv-        or    THE  , 

LEtrimEC&c. 


LECTURE  T. 

INTRODUCTORY. 


A  KNOWLEDGE  of  the  history,  organization,  and 
principles  of  the  government  under  which  he  lives, 
must  be  beneficial  to  every  man,  wheresoever  he  may 
dwell,  and  under  whatsoever  form  of  government  his 
lot  may  have  been  cast,  and  may  be  regarded  as  pe- 
culiarly advantageous  in  free  states,  where  every 
citizen  must  possess  an  influence  more  or  less  pow- 
erful in  the  administration  of  public  affairs.  It  is 
obviously  indispensable  where  the  political  rights  of 
all  are  equal,  and  where  the  obscurest  individual  has 
a  voice  in  the  election  of  his  rulers,  and  is  himself 
eligible  to  the  highest  stations  in  the  government. 

It  was,  therefore,  with  reason,  considered  a  de- 
fect in  the  prevailing  systems  of  education,  that  the 
study  of  our  constitutional  jurisprudence  should  have 
been  either  altogether  omitted,  or  deferred  to  that 
period  of  life  when  our  youth  are  called  on  to  par- 
ticipate in  the  active  duties  of  society,  or  that  it 
should  have  been  regarded  only  as  necessary  to  law- 
yers and  politicians.  For,  however  essential  as  is 
a  profound  knowledge  of  the  Constitution  to  states- 
men and  jurists,  some  acquaintance  with  its  prin- 
ciples and  details  must,  in  the  opinion  of  all  who 
entertain  liberal  views  of  public  education,  and  cor- 
rectly estimate  their  privileges  as  citizens,  be  re- 
quisite for  those  whose  ambition  rises  no  higher 
than  the  mere  exercise  of  those  privileges  at  elec- 


20  LECTURES  ON 

tions  of  their  representcatives  in  the  government, 
without  a  wish  themselves  for  political  influence 
or  public  station.  It  is  gratifying  to  find,  however, 
that  of  late  years  a  greater  interest  has  been  man- 
ifested among  the  more  intelligent  portion  of  the 
community  with  regard  to  the  origin,  structure,  and 
principles  of  our  political  institutions.  This  certain 
ly  evinces  that  one  class,  at  least,  of  our  citizens  ap- 
preciates the  value  of  our  political  system,  and  that 
so  far,  therefore,  it  is  better  understood.  But  reason 
and  common  sense  suggest  that  such  information 
cannot  be  acquired  too  soon,  and  experience  teaches 
us  that  it  cannot  be  too  widely  diffused.  The  public 
interest  and  welfare,  if  not  the  stability  of  our  polit- 
ical system,  not  less  than  the  safety  and  happiness  of 
individuals,  and  the  security  of  their  persons  and 
property,  require  that,  in  common  with  other  impor- 
tant branches  of  public  education,  the  knowledge  in 
question  should  be  extended  to  every  portion,  and,  if 
possible,  to  every  member  of  the  body  politic. 

Until  lately,  it  was  a  reproach  to  our  college  that 
it  sent  forth  its  graduates  more  familiar  with  the  con- 
stitution of  the  Roman  Republic,  and  the  principles 
of  the  Grecian  confederacies,  than  with  the  funda- 
mental laws  of  their  own  country.  To  remedy  this 
evil,  it  was  proposed  to  ingraft  this  new  branch  of 
study  upon  the  general  course  pursued  in  this  insti- 
tution ;  but  in  preparing  my  lectures  I  shall  not  lose 
sight  of  their  possible  usefulness  to  foreigners  ;  for 
it  will  hardly  be  denied  that  more  accurate  informa- 
tion in  regard  to  the  organization  and  powers  of 
the  Federal  Government  is  desirable  in  European 
statesmen,  ministers,  and  lawyers,  while  their  want 
of  it  is  not  only  mortifying  to  our  national  pride,  but 
prejudicial  to  our  national  interests.  Much  vexa- 
tious difficulty  and  fruitless  negotiation  would  douDi- 


CONSTITUTIONAL   JURISPRUDENCE.  21 

less  have  been  prevented,  had  the  public  men  of 
Great  Britain  and  France  been  better  informed  in 
regard  to  them. 

By  way  of  introducing  the  subject  to  your  notice, 
I  shall  present  you  w^ith  a  rapid  sketch  of  the  origin 
and  progress  of  the  American  Confederation,  until  it 
reached  a  result  so  auspicious  as  the  establishment 
of  the  present  Federal  Constitution  ;  and  this  histor- 
ical review  will,  I  trust,  prove  the  more  useful,  as  it 
will  serve  not  only  to  exhibit  the  genius  and  practi- 
cal excellence  of  the  government,  but  also  to  facili- 
tate the  study  of  its  organization  and  powers. 

While  the  American  people  were  subjects  of  the 
British  crown,  and  the  elder  of  these  states  were  as 
yet  British  colonies,  it  was  perceived  that  their  union 
was  essential  to  their  safety  and  prosperity.  Both 
general  and  partial  associations  were  accordingly 
formed  among  them  for  temporary  purposes,  and  on 
sudden  emergencies,  long  before  their  permanent 
union  to  resist  the  claims  and  aggressions  of  the 
mother-country,  a  measure  which  produced  the  Rev- 
olution, and  ended  in  the  acknowledgment  of  the  col- 
onies as  free  and  independent  states.  The  common 
origin  and  interests  of  the  New-England  provinces, 
the  similarity  of  their  manners,  laws,  religious  tenets, 
and  civil  institutions,  naturally  led  to  a  more  intimate 
connexion  among  themselves,  and  induced,  at  a  very 
early  period,  the  habit  of  confederating  together  for 
their  common  defence.  These  colonies,  as  far  back 
as  the  year  1643,  apprehending  danger  from  the  war- 
like and  formidable  tribes  of  Indians  by  which  they 
were  surrounded,  entered  into  an  offensive  and  de- 
fensive league,  which  they  declared  should  be  firm 
and  perpetual,  as  well  as  that  they  should  thenceforth 
be  distinguished  as  "  The  United  Colonies  of  New- 
England  "     III  this  transaction,  the  provincial  gov- 


22  LECTURES    ON 

ernmeiits,  who  were  parties  to  it,  acted,  in  fact,  as 
independent  sovereignties ;  and  circumstances  ena- 
bled and  encouraged  them  to  assume  an  exemption 
from  the  control  of  any  superior  power. 

By  the  charters  from  the  crown,  under  which  they 
had  been  founded,  and  which  prescribed  their  re- 
spective forms  of  government,  and  settled  its  funda- 
mental principles,  the  people  of  those  colonies  were 
authorized,  by  the  suffrages  of  the  freemen  of  the 
several  towns,  to  elect,  not  only  their  immediate  rep- 
resentatives in  the  popular  branch  of  their  legisla- 
tures, but  also  the  chief  executive  magistrate,  or 
governor,  and  his  assistants,  or  councillors,  who 
formed  a  second  and  co-ordinate  branch  of  those 
provincial  assemblies.  The  supremacy,  therefore, 
of  the  British  crown  or  Parliament  over  the  colonies 
in  question  had,  at  all  times,  been  little  more  than 
nominal,  in  comparison  with  the  authority  exercised 
over  those  provinces,  where  the  governors  and  coun- 
cillors were  appointed  by  the  crown,  and  held  their 
offices  at  its  pleasure,  and  which  in  other  respects, 
also,  were  kept  in  closer  and  more  immediate  sub- 
jection. The  civil  war  in  which  Great  Britain  was 
at  that  time  plunged  occupied,  moreover,  her  whole 
attention  ;  and  this  measure  of  her  colonies,  tending 
80  directly  to  future  independence,  was  suffered  to 
pass  without  much  notice,  and  without  any  animad- 
version. 

From  the  terms  of  this  association,  it  may  justly 
be  regarded  as  the  first  step  towards  the  establish- 
ment of  independent  government  in  A^merica ;  with 
some  occasional  alterations,  it  subsisted  for  nearly 
half  a  century,  and  for  a  part  of  that  time  with  the 
countenance  of  the  British  government ;  nor  was  it 
dissolved  until  the  charters  of  the  New-England  prov- 
inces were,  in  effect,  annulled  by  James  the  Second. 


CONSTITUTIONAL    JURISPRUDENCE.  23 

Subsequently,  however,  to  that  arbitrary  procedure, 
congresses  of  governors  and  commissioners  from  the 
other  colonies,  as  well  as  from  New-England,  were 
held  from  time  to  time,  to  consult  on  matters  relative 
to  their  common  welfare,  and  to  adopt  measures  for 
the  protection  of  the  frontiers.  An  assembly  of  this 
description  took  place  at  Albany  in  1722.  But  a 
more  general  and  memorable  convention  was  held  at 
the  same  place  in  1754,  consisting  of  commissioners 
from  all  the  New-England  colonies,  and  from  the 
provinces  of  New- York,  Pennsylvania,  and  Mary- 
land. 

This  Congress  was  called  at  the  instance  of  the 
government  in  England ;  and  although  the  object  of 
the  ministry  in  proposing  it  was  merely  to  promote 
and  facilitate  the  negotiation  of  treaties  with  the  In- 
dians, the  colonial  legislatures,  who  promptly  acce- 
ded to  the  proposal,  evidently  entertained  more  ex- 
tensive views  with  respect  to  the  proceeding.  Two 
of  the  provinces  expressly  instructed  their  delegates 
to  enter  into  articles  of  confederation  with  the  other 
colonies,  for  their  general  security  in  time  of  peace, 
as  well  as  in  war ;  and  one  of  the  first  acts  of  the 
commissioners,  when  they  assembled,  was  a  unani- 
mous resolution  that  a  union  of  the  colonies  was  ab- 
solutely necessary  for  their  preservation.  After  re- 
jecting several  proposals  for  the  division  of  the  colo- 
nies into  separate  confederacies,  they  agreed  to  a 
plan  of  federal  government  for  the  whole,  consisting 
of  a  president-general,  to  be  appointed  by  the  crown, 
and  a  general  legislative  council,  to  meet  once  in  ev- 
ery year,  and  to  be  composed  of  delegates  chosen  tri- 
ennially,  by  the  provincial  assemblies. 

This  celebrated  plan  of  union  was  draw  up  by 
Doctor  Franklin,  who  attended  as  a  delegate  from 
Pennsylvania,  and  is  to  be  found  in  the  more  recent 


24  LECTURES    OJN 

editions  of  his  works,  together  with  an  exposition  of 
the  reasons  and  motives  which  guided  him  in  form- 
ing it.  The  confederacy  was  to  embrace  all  the  then 
existing  colonies  ;  and  the  rights  of  war  and  peace, 
in  respect  to  the  Indian  nations,  were  vested  in  the 
general  council  of  the  confederates,  subject  to  the 
immediate  negative  of  the  pr^^-ident-general,  and  the 
ultimate  approval  of  the  crown.  It  was  to  possess 
the  farther  power  "  to  raise  troops  and  build  forts 
for  the  defence  of  the  colonies,  and  to  equip  vessels 
of  war  to  guard  the  coasts  and  protect  commerce ;" 
and  for  these  purposes  the  general  council  was  to 
have  power  to  levy  such  general  imposts  and  taxes 
as  should  seem  most  just  and  equal.  ^ 

Besides  the  venerable  name  of  Franklin,  there 
were  enrolled  among  the  delegates  to  this  Congress 
some  others  of  the  greatest  distinction  in  our  colonial 
history.  In  the  course  of  their  proceedings,  these  en- 
lightened men  asserted  and  promulgated  those  prin- 
ciples, the  reception  of  which,  in  the  minds  of  the 
people  of  this  country,  prepared  them  for  future  inde- 
pendence, and  laid  the  foundations  of  our  present  na- 
tional government.  But  the  times  were  not  yet  pro- 
pitious— the  season  had  not  yet  arrived,  nor  were 
public  sentiment  and  intelligence  sufficiently  ma- 
tured for  so  comprehensive  and  liberal  a  proposition. 
The  master-minds  who  governed  that  assembly  had 
gone  before  their  age  ;  and  their  bold  project  of  con- 
tinental union  had  tiie  singular  fate  of  being  rejected, 
not  only  in  England,  but  by  every  provincial  legisla- 
ture. By  the  mother-country,  it  was  probably  sup- 
posed that  union  would  soon  reveal  to  her  colonies 
the  secret  of  their  strength,  and  afford  them  the  op- 
()ortunity  and  the  means  of  giving  it  effect ;  while  on 
the  part  of  the  colonies,  a  dread  of  the  prepondera- 
iirig  influence  of  the  loyal  prerogative,  in  the  opcra» 


CONSTITUTIONAL  JURISPRUDENCE-  2b 

tion  of  the  proposed  system,  condemned  them  to  re- 
main for  some  y»ars  longer  separate  and  insignifi- 
cant communities,  emulous  in  their  obedience  to  the 
parent  state,  and  in  devotion  to  her  interests,  but  jeal- 
ous of  each  other's  prosperity ;  gradually  estranged 
by  conflicting  pretensions  and  narrow  views  of  local 
policy ;  and  in  some  instances  kept  apart  by  mutual 
prejudices,  or  the  dissimilarity  of  their  institutions  and 
manners.  The  necessity  of  union  had,  nevertheless, 
been  felt ;  its  advantages  perceived ;  its  principles 
explained,  and  the  way  to  it  clearly  pointed  out ;  and 
at  length,  the  sense  of  common  danger  and  oppres- 
sion brought  the  colonies  once  more  together,  and  led 
them  to  adopt  the  same  measures  of  defence  and  se- 
curity, not,  indeed,  against  the  vexatious  and  irregular 
warfare  of  the  savage  tribes,  but  in  resistance  to  the 
formidable  claims,  and  still  more  formidable  power, 
of  the  mother-country. 

When  the  first  attack  was  made  by  Parliament 
upon  the  chartered  privileges  of  the  colonists,  and 
their  inherent  rights  as  subjects  of  the  English  law, 
by  the  celebrated  Stamp  Act  of  1763,  a  congress 
of  deputies  from  all  the  colonial  assemblies  was  rec- 
ommended by  the  popular  branch  of  the  Massachu- 
setts Legislature  ;  and  in  the  month  of  October,  in 
that  year,  delegates  from  most  of  the  provinces  as- 
sembled at  New- York.  Without  delay  or  hesitation, 
they  jmblished  a  declaration  of  the  rights  and  grie\ 
nnces  of  the  colonists,  in  which  they  asserted  their 
title  to  the  enjoyment  of  all  the  rights  and  privileges 
of  British  subjects,  and  especially  the  exclusive 
power  of  taxing  themselves.  They  complained  more 
particularly  of  the  act  of  Parliament  imposing  stamp 
duties,  and  other  direct  taxes  in  the  colonies ;  and 
their  remonstrances  were  so  far  successful  that  this 
obnoxious  measure  was  rescinded,  although  its.  re- 
C 


26  LECTURES    ON 

peal  was  accompanied  by  a  declaratory  assertion  of 
the  power  of  Parliament  to  tax  the  polonies  in  all  ca- 
ses whatever. 

This  reservation,  however,  of  the  abstract  right 
gave  little  umbrage  to  the  colonists,  who  regarded  it 
merely  as  an  emollient  for  the  offended  pride — a 
salvo  for  the  wounded  honour  of  Great  Britain,  and 
verily  believed  that  no  new  attempt  would  be  made 
to  reduce  the  principle  to  practice.  But  it  was  soon 
discovered  that  they  had  reposed  too  much  faith  i^* 
the  intelligence,  prudence,  and  moderation  of  the 
British  statesmen  of  that  day.  Before  two  years 
had  elapsed,  the  very  men  who  had  consented  to  the 
repeal  of  the  Stamp  Act  brought  into  Parliament  a 
bill  equally  objectionable  in  principle,  though  less 
odious  in  its  features  and  oppressive  in  its  operation  ; 
^  and  this  bill  became  a  law,  almost  without  opposition. 
\  After  a  long  course  of  patient  remonstrance  and  con- 
stitutional resistance  to  the  execution  of  this  act,  a 
general  congress  was  proposed  at  town  meetings  in 
New- York  and  Boston,  and  more  formally  recom- 
mended by  a  majority  of  the  Virginia  Assembly, 
upon  the  dissolution  of  that  body  in  consequence  of 
its  opposition  to  the  claims  of  Parliament.  The 
committees  of  correspondence  established  in  the  sev- 
eral colonies  selected  the  city  of  Philadelphia  as  the 
place,  and  appointed  the  tenth  of  September,  1774, 
as  the  time  of  meeting  of  the  first  Continental  Con- 
gress. 

The  members  of  that  illustrious  body  were  in 
general  elected  by  the  colonial  legislatures ;  but 
in  some  instances  a  different  method  was  pursued, 
which,  for  the  most  part,  was  adopted  from  necessity. 
In  New-Jersey  and  Maryland,  the  elections  were 
made  by  committees  chosen  in  the  several  coun- 
ties for  that  purpose ;  and  in  New- York,  where  the 


CONSTITUTIONAL    JUniSPRUDENCE.  27 

royal  party  being  the  stronger,  it  was  improbable 
that  a  legislative  act  authorizing  the  election  of  rep- 
resentatives in  Congress  could  be  obtained,  the  peo- 
ple themselves  assembled  in  those  places  where 
the  spirit  of  opposition  prevailed,  and  elected  dele- 
gates, who  were  readily  received  as  members  of  the 
Congress.  The  powers  with  which  the  deputies 
of  the  several  colonies  were  invested  were  of  vari- 
ous extent ;  although  the  recommendations  for  their 
appointment  had  been  expressed  in  the  most  gen- 
eral and  comprehensive  terms,  and  requested  that 
they  should  be  clothed  with  *'  authority  and  discre- 
tion to  meet  and  consult  together  for  the  common  loel- 
farc^  Most  generally  they  were  empowered  to  con- 
sult and  advise  on  the  means  most  proper  to  secure 
^he  liberties  of  the  colonies,  and  restore  the  harmony 
»brinerly  subsisting  between  them  and  the  parent 
^tate.  In  some  instances,  the  powers  conferred 
seemed  to  contemplate  only  such  measures  as  would 
operate  on  the  commercial  connexion  between  the 
two  countries ;  in  others,  the  discretion  of  the  dele- 
i>"ates  was  unlimited. 

Deputies  from  eleven  of  the  provinces  appeared  at 
Philadelphia  on  the  day  appointed,  and  took  into  im- 
mediate consideration  the  calamitous  aspect  of  public 
affairs  ;  and  especially  the  sufferings  of  those  colo- 
nies which  had  been  foremost  and  most  active  in  re- 
sistance to  the  oppressive  measures  of  the  mother- 
country.  By  a  series  of  declaratory  resolutions, 
they  asserted  what  they  deemed  to  be  the  absolute 
and  inalienable  rights  of  the  colonists,  as  men,  and 
as  free  subjects  of  Great  Britain  ;  pointed  out  to 
their  constituents  the  systematic  aggression  which 
had  been  pursued,  and  the  impending  violence  pre- 
meditated against  them  ;  and  enjoined  them,  by  their 
regard  to  honour,  and  their  love  of  country,  to  re- 


28  LECTURES    ON 

nounce  commerce  with  Great  Britain,  as  the  most 
effectual  means  of  averting  the  dangers  with  which 
they  were  threatened,  and  of  securing  those  liberties 
which  they  claimed  from  the  bounty  of  their  Creator, 
and  as  an  inheritance  from  their  fathers. 

This  requisition  received  prompt  and  universal 
obedience  ;  and  the  Union  thus  formed,  and  con- 
firmed by  these  resolutions,  was  continued  by  suc- 
cessive elections  of  delegates  to  the  General  Con- 
gress, and  was  maintained  through  every  period  of  the 
Revolution  which  immediately  ensued,  and  every 
change  in  our  Federal  and  State  Governments,  and  is 
revered  and  cherished  by  every  true  American  as 
the  source  of  our  national  prosperity,  and  the  only 
solid  foundation  of  our  national  independence. 

In  the  month  of  May,  1775,  a  new  Congress,  con- 
sisting of  delegates  from  twelve  provinces,  clothed 
with  ample  discretionary  powers,  met  at  Philadel- 
phia ;  and  soon  after  it  assembled,  the  accession  of 
Georgia  completed  the  confederation  of  the  Thirteen 
Colonies  of  North  America.  These  delegates  were 
instructed  to  "  concert  and  prosecute  such  measures 
as  they  should  deem  most  fit  and  proper  to  obtain  a 
redress  of  grievances  ;"  and,  in  more  general  terms, 
corresponding  with  the  formula  of  classic  antiquity, 
to  "take  care  of  the  liberties  of  the  country." 
Charged  thus  solemnly  with  the  protection  of  the 
common  rights  and  interests,  the  representatives  of 
the  American  people  prepared  for  resistance,  sus- 
tained by  the  confidence,  and  animated  by  the  zeal 
of  their  constituents.  They  published  a  declaration 
3f  the  causes  and  necessity  of  resorting  to  arms, 
and  proceeded  to  levy  and  organize  forces  by  land 
and  sea ;  to  contract  debts  and  emit  a  paper  cur- 
rency, pledging  the  faith  of  the  Union  for  its  redemp- 
tion; and  gradually  assuming  all  the  powers  of  na- 


CONSTITUTIONAL    JURISPRUDENCE.  29 

tional  sovereignty,  this  Congress  at  length  declared 
the  United  Colonies  free  and  independent  states.* 

Preparatory  to  this  momentous  and  uncompromi- 
sing measure,  by  which  our  Revohition  may  he  said 
to  have  been  consummated,  an  important  preUminary 
step  had  been  taken  by  Congress,  which  in  itself  was 
considered  decisive  of  the  question  of  independence. 
It  had  previously  recommended  to  particular  colo- 
nies to  establish  temporary  institutions  for  conduct- 
ing their  affairs  during  the  contest  with  the  mother- 
country  ;  but  when  independence  was  perceived  to 
be  the  inevitable  result,  it  was  proposed  by  Congress, 
to  the  respective  assemblies  and  conventions  of  the 
provinces  where  no  government  adapted  to  the  exi- 
gencies of  the  crisis  had  already  been  formed,  to 
adopt  such  constitutions  as  should  be  most  conducive 
to  the  happiness  and  safety  of  their  immediate  con- 
stituents, as  well  as  of  the  nation  at  large.  The  pro- 
vincial assemblies  acted  on  this  recommendation  ; 
and  the  several  colonies,  already  contemplating  them- 
selves as  independent  states,  adopted  the  principle, 
then  considered  visionary  in  Europe,  of  limiting  the 
constituted  authorities  by  a  written  fundamental  in- 
strument; and  thus  the  doctrine  of  the  "  Social  Con- 
tract," hitherto  advanced  merely  as  an  ingenious  the- 
ory, or  regarded  as. a  bold  and  fanciful  speculation, 
was  first  actually  exemplified,  and  successfully  ro 
duced  to  practice. 

To  secure  and  perpetuate  these  state  institutions ^ 
it  was  deemed  expedient,  while  these  measures  were 
maturing,  to  explain  more  fully,  and  by  a  formal  in- 
strument, the  nature  of  the  federative  compact,  and 
to  define  both  the  powers  vested  in  the  General 
Government,  and  the  residuary  sovereignty  of  the 

*  Vide  Appendix  A. 


30  LECTURES    ON 

Stales.  But  the  measure  was  attended  with  so  much 
embarrassment  and  delay,  that  notwithstanding  they 
were  surrounded  by  the  same  common  danger,  and 
were  together  contending  for  the  same  inestimable 
principles  and  objects,  it  was  not  until  late  in  the 
ibllowing  autumn  that  the  discordant  interests  and 
prejudices  of  these  thirteen  distinct  commonwealths 
could  be  so  far  blended  and  compromised  as  to  in- 
duce their  agreement  to  the  terms  of  the  proposed 
Federal  Union ;  and  when  submitted  to  the  state 
legislatures  for  ratification,  the  system  was  declared 
by  Congress  to  have  been  the  result  of  impending 
necessity,  consented  to,  not  for  its  intrinsic  excel- 
lence, but  as  the  best  that  could  be  adapted  to  the 
circumstances  of  the  states  respectively,  and,  at  the 
same  time,  afford  any  reasonable  hope  of  general 
assent. 

The  "  Articles  of  Confederation"  met  with  still 
greater  obstacles  in  their  progress  through  the  states. 
Most  of  the  state  legislatures,  indeed,  ratified  them 
with  a  promptitude  which  evinced  a  due  sense  on 
their  part  of  the  necessity  of  preserving  the  confed- 
eracy, and,  to  that  end,  of  the  duty  of  exercising  a 
liberal  spirit  of  accommodation.  But  some  of  the 
states  withheld  their  assent  for  several  years  after 
the  declaration  of  independence  ;  and  one,  in  partic- 
ular, persisted  so  long  in  its  refusal,  as  to  injure  the 
common  cause,  afford  encouidgement  to  the  enemies, 
and  depress  the  hopes  of  every  friend  of  .America. 
Tbe  perception  of  these  consequences  at  icnglh  in- 
duced the  state  in  question  to  abandon  its  objec- 
tions ;  and  on  the  first  of  March,  1781,  these  arti- 
cles of  Union  received,  upon  the  accession  of  Mary> 
land,  the  unanimous  approbation  of  the  states.* 

*  Vide  Appendix  B. 


CONSTITUTIONAL    JURISPRUDENCE.  31 

By  the  terms  of  this  compact,  cognizance  and  ju- 
risdiction of  foreign  affairs  ;  the  power  of  declaring 
war  and  concluding  peace  ;  and  authority  to  make 
unlimited  requisitions  of  men  and  money,  were  ex- 
clusively vested  in  Congress  ;  and  a  compliance  with 
these  powers,  when  exercised  by  that  body,  was  rcn 
dered  obligarory  upon  the  several  states.  But  these 
rights  of  political  supremacy,  extensive  as  they  were, 
had  been  conferred  in  a  very  imperfect  manner,  and 
under  a  most  imperfect  organization.  The  articles, 
indeed,  were  but  a  written  digest,  and  even  a  limita^ 
tion  of  the  discretionary  powers  which  had  been  del- 
egated to  Congress  in  1775,  and  which  had  always 
been  freely  exercised,  and  implicitly  obeyed.  The 
powers  themselves,  now  formally  enumerated  and  de- 
fined, might,  nevertheless,  have  proved  competent  for 
all  the  essential  purposes  of  union,  had  they  been 
duly  distributed  among  the  several  departments  of  a 
well-balanced  government,  and  brought  to  bear  upon 
the  individual  citizens  of  the  United  States  by  means 
of  a  federal  executive  and  judicial,  as  well  as  legis- 
lative authority.  Congress,  as  then  constituted,  was, 
in  fact,  an  improper  and  unsafe  depository  of  politi- 
cal power,  since  the  whole  national  authority,  in  one 
consolidated  mass  of  complicated  jurisdiction,  was 
vested  in  a  single  body  of  men ;  while,  in  imitation 
of  all  former  confedejacies  of  independent  sovereign- 
ties, the  decrees  of  ux^  federal  council  affected  the 
states  only  in  their  corporate  capacity,  as  contradis- 
tinguished from  the  individuals  of  whom  they  arc 
composed.  This  was  considered  by  the  ablest  states- 
men of  that  day  as  the  radical  defect  of  the  first  con- 
federation ;  "  and  although  this  vicious  principle  did 
not,"  as  one  of  them  has  justly  remarked,  "run 
through  all  the  powers  delegated  to  the  Union,  yet 
it  pervaded  and  governed  those  on  which  the  efficacy 


32  LECTURES    ON 

of  the  rest  depended."  Except  as  to  the  rule  of  ap 
portionraeiit,  Congress  had  an  hidefinite  discretion  tc 
make  requisitions  for  men  and  money  ;  but  they  had 
no  authority  to  raise  either  the  one  or  the  other  by 
regulations  extending  to  the  individual  citizens  of  the 
American  Republic,  Like  the  warrior-magician  ot 
the  great  dramatic  poet,  they  could  "  call  up  spirits 
from  the  yeasty  deep,"  but  none  would  "  come  when 
they  did  call."  The  consequence  was,  that  though 
in  theory  the  resolutions  of  Congress  were  equiva- 
lent to  laws,  yet  in  practice  they  were  found  to  be 
mere  recommendations,  which  the  states,  like  other 
irresponsible  sovereigns,  observed  or  disregarded, 
according  to  their  own  good  will  and  gracious  pleas- 
ure. 

The  next  most  palpable  defect,  therefore,  in  the 
system  was  the  absence  of  all  power  in  Congress 
to  compel  obedience  to  their  decrees  ;  or,  in  legal 
parlance,  the  total  want  of  a  sanction  to  their  laws. 
There  was  no  express  delegation  of  authority  to  use 
force  against  delinquent  members  of  the  confederacy, 
and  no  such  right  could  be  ascribed  to  the  federal 
head,  as  resulting  from  construction,  or  derived  by 
inference  from  the  nature  of  the  compact,  inasmuch 
as  Congress  was  actually  restricted  from  any  as- 
sumption of  implied  powers,  however  essential  to 
the  complete  exercise  of  those  which  were  express- 
ly given.  Fortunately  for  the  country,  there  was 
then  too  much  public  virtue  in  that  body  to  assume 
a  power  not  warranted  by  the  Constitution.  Had  its 
members  possessed  less  wisdom  and  integrity,  and 
stretched  their  authority  under  the  plea  of  an  impe- 
rious necessity,  which  might  often  have  been  alleged 
on  stronger  and  more  plausible  grounds  than  at  any 
subsequent  period,  it  would  have  been  usurpation  ; 
and  had  they  been  clothed  with  the  power  of  enfor. 


CONSTITUTIONAL  JURISPRUDENCE.     33 

cing  their  constitutional  requisitions,  it  might,  from 
the  accumulated  jurisdiction  vested  in  them,  have 
proved  fatal  to  public  liberty.  The  only  remedy, 
therefore,  for  a  violation  of  the  compact  was  war 
upon  the  refractory  party,  by  such  others  of  the  con- 
federates as  might  think  proper  to  resort  to  it.  But 
the  application  of  this  remedy  would  probably  have 
produced  dismemberment,  and  thus  have  proved 
worse  even  than  the  disease  itself. 

The  want  of  a  mutual  guarantee  of  the  state  gov- 
ernments to  protect  them  from  internal  violence  and 
rebellion  ;  the  principle  by  which  the  contributions 
of  the  states  were  made  to  the  common  treasury  •, 
the  want  of  a  power  in  Congress  to  regulate  com- 
merce ;  the  right  of  equal  suffrage  possessed  by  the 
states  in  Congress,  as  well  as  the  omission  of  dis- 
tinct and  independent  executive  and  judicial  de- 
partments, were  also  regarded  as  fundamental  errors 
in  the  confederation.  In  these  leading  particulars, 
and  in  some  others  of  inferior  importance,  it  had 
proved  totally  incompetent  to  fulfil  the  ends  for 
which  it  had  been  devised.  Almost  as  soon  as  it 
was  finally  ratified,  the  states  began  to  fail  in  prompt 
and  faithful  observance  of  its  provisions.  As  the 
dangers  incident  to  revolution  and  war  receded,  in- 
stances of  neglect  and  disobedience  became  more 
gross  and  frequent ;  and,  "  by  the  time  peace  was 
concluded,"  it  was  observed  by  one  of  our  constitu- 
tional jurists*  that  "  the  disease  of  the  government 
had  displayed  itself  with  alarming  rapidity."  The 
inequality  in  the  application  of  the  principle  of  con- 
tributions produced  delinquencies  in  many  of  the 
states  ;  and  the  delinquencies  of  one  state  became 
the  pretext  or  apology  for  those  of  another,  until  the 
project  of  supplying  the  pecuniary  exigencies  of  the 

*  Chancellor  Kent. 


84  LECTURES    ON 

nation  by  requisitions  upon  the  individual  states  waa 
discovered  to  be  altogether  delusive  in  its  concep- 
tion, and  hopeless  in  its  execution. 

The  Continental  government,  destitute,  as  we  have 
seen,  of  power  to  adopt  regulations  of  commerce 
binding  on  the  states,  each  state  established  its  sep- 
arate system,  on  such  narrow  and  selfish  principles, 
and  executed  it  in  so  partial  and  unequal  a  manner, 
that  the  confidence  of  foreign  nations  in  our  commer- 
cial integrity  and  stability,  and  the  mutual  harmony 
and  freedom  of  intercourse  among  the  states  them- 
selves, were  impaired,  if  not  destroyed.  The  na- 
tional engagements,  indeed,  seem,  in  most  cases,  to 
have  been  abandoned ;  and,  in  the  indignant  lan- 
guage of  the  "  Federalist,"  "  each  state,  yielding  to  the 
voice  of  immediate  interest  or  convenience,  success- 
ively withdrew  its  support  from  the  confederation, 
until  the  frail  and  tottering  edifice  was  ready  to  fall 
on  the  heads  of  the  people,  and  crush  them  beneath 
its  ruins." 

In  the  most  persuasive  and  manly  remonstrances. 
Congress  had  endeavoured  to  obtain  from  the  states 
the  right  of  levying,  for  a  limited  time,  a  general  im- 
post on  goods  imported  from  abroad,  for  the  exclu 
sive  purpose  of  providing  for  the  discharge  of  the 
national  debt.  But  it  was  impracticable  to  unite  so 
many  independent  sovereignties  in  this  or  any  other 
measure  for  the  safety  and  honour  of  the  confedera- 
cy. Disastrous,  how^ever,  as  their  refusal  appeared 
at  the  time,  and  deeply  regretted  as  it  was  by  every 
intelligent  friend  of  the  Union,  it  may  be  deemed 
providential  that  the  state  legislatures  withheld  from 
Congress  the  power  solicited  ;  for,  had  it  then  been 
granted,  it  is  the  opinion  of  the  constitutional  jurist 
to  whom  I  have  already  referred,  that  "  the  subse- 
quent efl^ort  to  amend  the  system  of  federal  govern- 
ment would  never,  probably,  have  been  made,  an^^ 


CONSTITUTIONAL    JURISPKUDENC.  35 

the  people  of  this  country  might  have  continued  to 
this  day  the  victims  of  a  feeble  and  incompetent  con- 
federacy." The  necessary  tendency  of  affairs  at  that 
period  was  either  to  an  entire  annihilation  of  the  na- 
tional authority,  or  to  a  civil  war  in  order  to  maintain 
it.  Universal  poverty  and  distress  were  spreading 
dismay  throughout  the  land.  Agriculture,  as  well  as 
commerce,  was  crippled  ;  private  confidence,  as  well 
as  public  credit,  was  destroyed  ;  and  every  expedient 
was  resorted  to  by  men  of  desperate  fortunes  to  in- 
flame the  minds  of  the  people,  and  cast  odium  upon 
-hose  who  laboured  to  preserve  the  national  faith,  and 
establish  an  efficient  government.  Notwithstanding 
the  sufferings  of  the  people  and  the  imbecility  of  the 
government,  there  were  many  citizens,  of  high  respec- 
tability and  undoubted  patriotism,  who  still  adhered 
to  the  old  confederation  ;  and,  from  their  preference 
or  their  possession  of  state  authority,  and  their  jeal- 
ousy of  federal  power,  could  see  nothing  in  the  pro- 
posed renovation  of  the  Union  but  oppression  and 
tyranny.  They  apprehended,  indeed,  nothing  less 
than  the  entire  destruction  of  the  state  governments 
by  the  overwhelming  influence  of  the  national  insti- 
tjitions,  and  determined  to  resist  the  contemplated 
change.  But  a  large  majority  of  those  who  had  con- 
ducted the  country  in  safety  through  the  Revolution, 
united  their  influence  taput  an  end  to  the  public  ca- 
lamities, by  establishing  a  political  system  which 
should  be  adequate  to  the  exigencies  of  nationa/ 
union,  and  act  as  an  efficient  and  permanent  govern 
ment  on  the  several  states.  The  foremost  among 
these  patriots  was  General  Washington.  At  the  close 
of  the  Revolutionary  war,  he  had  addressed  a  circular 
letter  to  the  governors  of  the  several  states,  urging  an 
indissoluble  union  as  essential  to  the  well-being,  and 
even  to  the  existence  of  the  nation ;  and  now.  from 


36  LECTURES    ON 

his  retirement,  he  strove,  in  all  his  intercourse  and 
correspondence  with  his  fellow-citizens,  to  impress 
upon  the  public  mind  the  necessity  of  such  a  meas- 
ure. At  his  seat  at  Mount  Vernon,  in  the  year  1785 
it  was  agreed  by  certain  commissioners  from  Vir- 
ginia and  Maryland,  whose  visit  had  reference  to 
far  inferior  objects,  to  propose  to  their  respective 
governments  the  appointment  of  new  commissioners, 
with  more  extensive  powers  in  regard  to  the  com- 
mercial arrangements  between  these  states.  This 
proposal  was  not  only  adopted  by  the  Virginia  Legis- 
lature, but  was  so  enlarged  as  to  recommend  to  all 
the  other  states  to  unite  in  the  appointment  of  com- 
missioners from  each,  to  meet  and  consult  on  tht 
general  subject  of  the  commercial  interests  and  rela- 
tions of  the  confederacy.  And  this  measure,  thus 
casual  and  limited  in  its  commencement,  terminated 
in  a  formal  proposition  for  a  general  convention  to 
revise  the  state  of  the  Union. 

When  the  period  arrived  for  the  meeting  of  this 
body,  the  objects  of  its  assembling  had  been  carried 
much  farther  than  at  first  expressed  by  those  who 
perceived  and  deplored  the  complicated  and  increas- 
ing evils  flowing  from  the  inefficiency  of  the  exist- 
ing confederation.  Representatives  from  New- York, 
New-Jersey,  Pennsylvania,  and  Delaware  were  all 
that  assembled  on  this  occasion,  in  addition  to  those 
from  Virginia  and  Maryland ;  and  upon  proceeding 
to  discuss  the  subjects  for  which  they  had  convened, 
it  was  soon  perceived  that  a  more  general  represen- 
tation of  the  states,  and  powers  more  extensive  than 
had  been  confided  to  the  delegates  actually  attending, 
would  be  requisite  to  efl'ect  the  great  purposes  in  con- 
templation. This  first  convention,  therefore,  broke 
up  without  coming  to  any  specific  resolution  on  the 
p'lrticular  matters  referred  to  them  ;  but,  previously 


CONSTITUTIONAL     JURISPRUDENCE.  37 

»  adjoiirniDg,  they  agreed  to  a  report  to  be  made  to 
their  respective  states,  and  transmitted  to  Congress, 
representing  the  necessity  of  extending  the  revision 
of  the  federal  system  to  all  its  defects,  and  recom- 
mending to  the  several  legislatures  to  appoint  depu- 
nes  to  meet  for  that  purpose,  in  convention,  at  Phila- 
delphia, on  the  second  of  the  ensuing  May. 

On  receiving  this  report,  the  Legislature  of  Vir- 
ginia immediately  appointed  delegates  for  the  ob- 
ject specified  in  the  recommendation  ;  and  within 
the  year  every  state  except  Rhode  Island  had  ac- 
ceded to  the  proposal,  and  elected  delegates  with 
power  to  carry  that  object  into  full  effect.  The  Gen- 
eral Convention,  thus  constituted  and  empowered, 
met  at  Philadelphia  on  the  day  appointed ;  and  hav. 
ing  chosen  General  Washington  (whose  name  was 
first  on  the  list  of  the  deputies  from  his  native  state)  • 
for  their  president,  proceeded,  with  closed  doors,  to 
deliberate  on  the  momentous  and  extensive  subjects 
submitted  to  their  consideration.  The  crisis  was 
most  important  in  respect  to  the  welfare  and  prosper- 
ity of  America,  if  not  of  the  whole  civilized  world. 
The  fruits  of  our  glorious  Revolution,  and,  perhaps, 
the  final  destiny  of  Republicanism  itself,  were  involv' 
ed  in  the  issue  of  this  experiment  to  reform  the  sys- 
tem of  our  national  government ;  and,  happily  for  the 
people  of  America — auspiciously  for  the  liberties  of 
mankind — the  Federal  Convention  comprised  a  rare 
assemblage  of  the  best  experience,  talents,  character 
and  information  which  this  country  afforded,  and  it 
commanded  that  universal  public  confidence  at  home 
and  abroad  which  such  qualifications  were  calculated 
to  inspire.  With  regard  to  the  great  principles  which 
should  constitute  the  basis  of  their  system,  not  much 
contrariety  of  opinion  is  understood  to  have  prevailed  ; 
but  on  the  application  of  those  principles,  in  theii 


38  LECTURES     ON 

various  forms  and  intricate  modifications,  an  equal  de- 
gree of  harmony  was  not  to  have  been  expected. 
Eventually,  however,  the  high  importance  attached 
to  the  preservation  of  the  Union  triumphed  over  local 
interests  and  personal  feelings ;  and  after  several 
months  of  arduous  deliberation,  the  Convention  final- 
ly agreed,  with  unexpected  and  unexampled  unanimi- 
ty, on  that  plan  of  government  which  is  contained 
in  the  Constitution  of  the  United  States.* 

The  new  system  was  directed  by  the  Convention 
to  be  laid  before  Congress,  to  be  by  them  transmitted 
to  conventions  to  be  chosen  by  the  people  in  each 
state,  for  their  assent  and  ratification.  It  was,  more- 
over, provided  in  the  Constitution  itself,  that,  as  soon 
as  it  should  be  ratified  by  nine  states,  it  should  be 
carried  into  operation  among  them,  in  a  mode  pre- 
scribed by  a  separate  act  of  the  Federal  Convention  ; 
and  in  their  letter  transmitting  it  to  Congress,  they 
declared  the  Constitution  to  be  "  the  result  of  a  spirit 
of  amity,  and  of  that  mutual  deference  and  conces- 
sion which  the  peculiarity  of  their  political  system 
rendered  indispensable." 

The  course  pointed  out  by  the  Convention  was  pur- 
sued by  Congress,  and  the  request  formally  commu- 
nicated to  the  state  legislatures.  The  people  were, 
accordingly,  invited  to  choose  delegates  to  meet  in 
each  state,  for  the  purpose  of  deliberating  and  deci- 
ding on  the  national  constitution.  Besides  the  sol- 
emn and  authoritative  examination  of  the  subject  in 
those  assemblies,  the  new  scheme  of  government 
was  subjected  to  severe  scrutiny  and  animated  dis- 
cussion, both  in  private  circles  and  in  the  public  prints 
But  neither  the  intrinsic  merits  of  the  Constitution 
itself,  nor  the  preponderating  weight  of  argument  and 
character  by  which  it  was  supported,  gave  assurance 
*  Vide  Appendix  C. 


CONSTITUTIONAL     JURISPRUDENCE.  39 

eo  its  advocates  that  it  would  be  eventually  accepted. 
It  contained  provisions  for  the  preservation  of  the 
public  faith  and  the  support  of  private  credit  which 
interfered  with  the  views,  and  counteracted  the  in- 
terests and  designs,  of  those  by  whom  public  and  pri- 
vate credit  were  equally  disregarded ;  and  against 
the  jealous  opposition  of  such  objectors  the  powers 
of  reason  were  exerted  in  vain,  because  their  real 
motives  could  not  be  avowed.  There  were,  how- 
ever, among  the  opponents  of  the  new  Constitution 
individuals  of  a  different  character,  upon  whom  the 
force  of  argument,  it  was  hoped,  might  make  its  due 
impression.  Men  of  influence  and  authority  were  to 
be  found  in  every  state,  who,  from  an  honest  convic- 
tion of  its  justice  and  policy,  were  desirous  of  retain- 
ing unimpaired  the  sovereignty  of  the  states,  and  re- 
ducing the  Union  to  a  mere  alliance  between  kindred 
nations.  Others  supposed  that  an  irreconcilable  op- 
position of  interests  existed  between  different  parts 
of  the  Continent,  and  that  the  claims  of  that  portion 
to  which  they  themselves  belonged  had  been  surren- 
dered without  an  equivalent:  while  a  more  numer- 
ous class,  who  felt  themselves  identified  with  the 
state  institutions,  and  thought  their  ambition  restrain- 
ed to  state  objects,  considered  the  government  now 
proposed  for  the  United  States,  in  some  respects,  a 
foreign  one  ;  and  were,  consequently,  disposed  to 
measure  out  power  to  the  National  Legislature  with 
the  same  sparing  hand  with  which  they  would  con- 
fer authority  on  agents  neither  chosen  by  themselves 
nor  accountable  to  them  for  its  exercise. 

The  friends  and  opponents  of  the  Federal  Consti- 
tution were  therefore  stimulated  in  their  exertions 
by  motives  equally  powerful ;  and  during  the  inter- 
val between  its  publication  and  adoption,  every  fac- 
ulty of  the  superior  minds  of  both  the  parties  was 


40  LECTURES    ON 

Strained  to  secure  the  acceptance  or  rejection  of  the 
new  system.  The  result  was  for  some  time  ex- 
tremely doubtful.  The  amendments  proposed  by 
several  of  the  states  as  conditions  of  their  accession 
show  with  what  reluctance  their  assent  was  given, 
and  clearly  evince  that  the  dread  of  dismemberment, 
rather  than  sincere  approbation  of  the  Constitution, 
had  in  many  instances  induced  its  adoption.  Never- 
.neless,  the  cause  of  political  wisdom  and  justice  at 
length  prevailed.  Within  one  year  from  its  promul- 
gation the  new  government  was  assented  to  by  eleven 
of  the  states,  and  ratified  by  Congress.  Delaware 
was  the  first  to  accede  to  it ;  and  the  assent  of  New- 
Hampshire,  as  the  ninth  state,  rendered  it  certain  that 
the  Constitution  would  be  carried  into  effect  by  the 
states  which  had  already  adopted  it.  The  important 
states  of  Virginia  and  New- York,  in  each  of  whicli 
its  fate  remained  uncertain,  were  probably  deter- 
mined in  its  favour  by  the  previous  ratification  of 
New-Hampshire:*  so  that,  by  the  spring  of  1780, 
the  Federal  Government  was  duly  organized  under 
the  new  Constitution,  and  went  immediately  into  full 
and  successful  operation,  without  the  concurrence  of 
Rhode  Island  or  North  Carolina,  who  were  after- 
ward admitted,  in  succession,  to  the  Union. 

The  final  establishment  of  this  admirable  system 
of  government,  so  well  adapted  to  the  genius,  charac- 
ter, and  circumstances  of  the  people,  and  to  the  situ- 
ation and  extent  of  the  country  ;  so  skilfully  ingrafted 
upon  the  pre-existing  institutions,  amid  all  the  diffi- 
culties and  impediments  which  have  been  exhibhed, 
aflfords  a  signal  example  of  the  benignant  influence 
of  peaceful  deliberation  and  calm  decision,  combined 
with  a  spirit  of  moderation  and  mutual  conciliation, 
not  only  oeyond  all  precedent,  but,  when  we  reflect 
*  Vide  Appendix  D. 


CONSTITUTIONAL    JURISPRUDENCE  41 

ou  the  fate  of  similar  attempts  in  other  countries,  be- 
yond the  hope  of  imitation.     And  while  the  felici- 
tous issue  of  this  experiment,  and  the  universal  ac- 
knowledgment of  its  hitherto  successful  results,  con- 
stitute lasting  proofs  of  the  wisdom  and  patriotism 
of  the  founders  of  our  government,  we  must  ever 
venerate  their  names,  adhere  to  their  principles,  and 
cherish  their  remembrances  of  services,  which  are 
entitled  equally  to  the  gratitude  and  admiration  of 
their  posterity.     We  shall  never,  I  trust,  disregard 
or  undervalue  the  blessings  which,  under  Providence, 
they  secured  to  us,  nor  forget  the  dangers  and  evils 
w:'iv'h  were  averted  by  their  persevering  and  devoted 
plTo»*ts — dangers  and  evils  to  which  the  people  of 
t.i.*e  states   would  again  be  exposed,  in  every  de- 
gree and  form  of  aggravation,  should  the  wisdom  and 
energy  of  the  fathers  of  our  country  be   rendered 
abortive  by  the  madness  and  folly  of  their  sons.     If 
threatened  with  such  a  reverse,  we  shall,  I  trust,  ever 
be  ready  to  respond  to  the  sentiments  called  forth  in 
a  happy  hour  from  one  of  our  late  chief  magistrates, 
that  at  every  sacrifice,  except  of  the  inalienable  rights 
and  liberties  which  the  Constitution  was  intended  to 
perpetuate,  "  The  Union  ml'st  be  preserved."* 


LECTURE  II. 

FUNDAMENTAL    PRIXCIPLES    OF   THE    CONSTITUTION. 

Having  in  the  former  lecture  presented  a  rapid 
sketch  of  the  origin  and  progress  of  the  American 
Confederation  down  to  the  establishment  of  the  pres- 
t:m  Constitution,  I  now  propose  to  treat  more  partic- 

*  Vide  Appendix  E. 

u 


42  LECTURES    ON 

ularly  o/  the  fundamental  principles  on  which  th* 
Federal  Government  was  formed,  and  exhibit  a  gen- 
eral view  of  its  organization  and  powers.  This 
statement  of  the  subjects  of  discussion  comprises  a 
definition  of  the  terms  by  which  they  are  designa- 
ted ;  for  by  a  constitution  is  meant,  not  only  the 
form  in  which  a  government  is  organized,  but  the 
principles  upon  which  it  is  founded ;  and  that  branch 
of  jurisprudence — which  treats  of  those  principles,  of 
the  practical  exercise  of  the  powers  of  government 
in  conformity  with  them,  and  the  construction  to  be 
given  to  them  in  such  their  application — has  beer* 
denominated  by  jurists  "  Constitutional  Law.'' 

It  has  been  justly  observed  by  a  writer  on  this 
subject,*  that  "  the  origin  of  political  constitutions  is 
as  various  as  their  forms.  In  a  pure  and  unmixed 
monarchy,  we  seldom  hear,"  he  remarks,  "  of  a  con- 
stitution ;  in  a  despotism,  never."  The  subjects  oi 
the  slaves  of  such  governments  may  nevertheless  be 
roused  or  driven  to  the  vindication  of  their  natural 
rights  ;  and  the  absolute  king  or  the  obdurate  tyrant 
may  be  compelled  to  adopt  fixed,  if  not  liberal  princi- 
ples of  administration,  or  they  may  voluntarily  con- 
cede them  in  favour  of  their  subjects.  So,  too,  a 
successful  conqueror  may,  from  motives  of  policy^ 
establish  certain  forms  and  principles  for  the  govern- 
ment of  a  people  whom  he  may  have  subdued.  In 
any  of  these  cases,  if  the  government  obtained  be 
the  result  of  general  consent,  whether  actually  ex- 
pressed or  fairly  to  be  implied,  such  nation  or  peo- 
ple may  be  said  to  possess  a  constitution.  The 
same  may  be  affirmed  of  an  aristocracy^  if  the  peo- 
ple at  large  agree  to  deposite  all  the  powers  of  gov- 
ernment in  a  select  fsw  ;  as  it  may  also  be  said  of  a 
democracy,  in  which  the  people  retain,  under  such 
*  Mr.  llawle 


CONSTITUTIONAL    JURISPRUDENCE.  43 

modifications  as  they  conceive  most  conducive  to 
their  own  safety  and  liberty,  all  sovereignty  within 
iheir  own  control.  The  great  difficulty,  however,  in 
every  such  case,  is  to  regulate  the  subdivisions  of 
authority  granted,  so  that  the  portion  of  it  vested  in  one 
department  or  body  of  men  shall  bear  a  due  propor- 
tion to  that  vested  in  another.  Each  branch  of  the 
government  should  be  sufficient  for  its  own  support 
in  the  exercise  of  its  appropriate  functions,  yet  all 
should  be  made  to  harmonize  and  co-operate. 

To  alter  and  amend  an  existing  system  by  adding 
new  parts  to  the  old  machinery,  and  particularly  to 
attempt  to  infuse  a  new  spirit  into  the  existing  gov- 
ernment contrary  to  its  original  genius,  produces  an 
irregular  and  jarring  combination,  discordant  in  its 
elements  and  confused  in  its  operation.  An  ex- 
emplification of  this  idea  is  affi)rded  by  the  late  re- 
form of  the  Parliament  in  England,  where,  although 
the  elective  branch  has  been  rendered  a  more  per- 
fect representative  of  the  Commons,  the  members  of 
the  upper  house  continue  to  sit  in  their  individual 
right,  and  still  constitute  an  hereditary  and  perma- 
nent body.  We  Americans  may  be  pardoned  for 
considering  that  the  best  mode  of  forming  a  political 
community  is  the  voluntary  association  of  a  sufficient 
number  of  individuals,  on  the  ground  of  an  original 
contract,  specifying  the  terms  on  which  they  are  to 
be  united,  and  thus  to  establish  a  new  constitution 
or  plan  of  government  adapted  to  their  situation, 
character,  exigencies,  and  prospects.  Indeed,  this 
may  be  asserted  to  be  the  only  true  origin  and  firm 
basis  of  a  republic. 

The  constitution  of  a  government  on  a  single  prin- 
ciple, whether  of  monarchy,  aristocracy,  or  democ- 
racy, is  undoubtedly  the  most  practical  and  easy, 
from  its  greater  simplicity.     But  a  constitution  may 


44  LECTURES    ON 

embrace  any  two  of  those  principles,  as  that  of  an 
cient  Rome  and  those  of  some  of  the  Grecian  States, 
and,  in  more  modern  times,  those  of  Genoa  and  some 
of  the  smaller  communities  of  Italy  ;  or  a  constitution 
may,  like  that  of  England,  unite  the  three  simple 
forms  :  a  government  of  which  description,  although 
antiquity  afforded  no  example  of  it,  was  pronounced 
by  Cicero  to  be,  if  rightly  organized  and  justly  bal- 
anced, the  most  perfect.  Modern  times  and  our 
own  country  have  shown  that  all  the  power  con- 
ceded to  an  hereditary  monarch  may  be  safely  vest- 
ed in  the  elective  head  of  a  Democratic  Republic, 
and  that  all  the  advantages  arising  from  the  unity  of 
the  executive  power  may  be  secured,  without  neces- 
sarily incurring  the  evils  of  an  hereditary  succes- 
sion. These  ends  are  effected  by  the  application  of 
that  great  discovery  of  modern  politics,  the  principle 
of  representation.  By  the  proper  distribution  of  the 
powers  of  government  among  several  distinct  branch- 
es, according  to  this  fundamentaf  principle,  each  of 
them  becomes,  in  its  respective  sphere,  the  immedi- 
ate and  equal  representative  of  the  people,  as  the  di- 
rect source  of  its  authority,  and  sole  ultimate  deposi- 
tary of  the  sovereign  power. 

By  the  powers  of  government,  I  mean  those  dis- 
tinguished from  each  other,  as  appertaining  to  the 
legislative,  executive,  and  judicial  departments ; 
which  division,  founded  as  it  is  on  moral  order,  can- 
not be  too  carefully  preserved.  In  the  wise  distri- 
bution of  these  powers,  and  the  application  of  proper 
aids  and  checks  to  each,  consists  the  optima  consii' 
tuta  Respuhlica,  contemplated  by  the  Roman  oratoi 
as  an  object  of  desire  and  admiration  rather  than  of 
hope. 

Should  these  three  powers  be  injudiciously  blend* 
ed — for  insrtance,  should  the  legislative  and  execu 


CONSTITUTIONAL    JURISPRUDENCE.  45 

live,  or  the  legislative,  and  judicial  branches  be  uni* 
ted  in  the  same  hands,  the  combination  would  be 
dangerous  to  public  liberty,  and  the  evils  to  be  appre- 
hended would  be  the  same,  whether  the  powers  in 
question  were  devolved  on  a  single  magistrate,  or 
vested  in  a  numerous  body.  If,  moreover,  the  prin- 
ciple of  representation  be  applied  only  to  a  part  uf 
the  government,  where  other  parts  exist  independ- 
ently of  that  principle,  with  an  equal  or  superior 
weight  to  that  constituted  in  conformity  to  it,  the  ben- 
efits of  the  one  must  obviously  be  partial,  and  the 
danger  to  be  apprehended  from  the  others,  in  propor- 
tion to  their  predominance. 

As  representation  may  thus  be  partial  in  respect  to 
the  powers  of  the  government,  so  it  may  be  confined 
to  a  portion  only  of  the  governed  ;  and  in  this  case, 
the  restriction  is  objectionable  in  exact  proportion  to 
the  number  of  those  excluded  from  representation, 
or  from  the  exercise  of  a  f  ^e  and  intelligent  voice 
in  the  choice  of  their  rulers.  In  some  countries  pos- 
sessing constitutions,  the  right  or  power  of  election  is 
variously  limited.  In  Venice,  it  was  formerly,  and  in 
some  of  the  aristocratical  republics  of  Switzerland,  it 
still  is,  the  exclusive  privilege  of  a  few  families,  in 
the  limited  or  mixed  monarchies  of  England,  France, 
Holland,  and  Belgium,  it  is  confined  to  persons  pos- 
sessing property  of  a  certain  description  or  amount. 
With  us,  the  rights  of  representation  and  suflfrage  aie, 
according  to  the  theory  of  the  Constitution,  univei- 
sal ;  but  in  practice  they  are  both  qualified — Avithout, 
however,  impairing  the  general  principle. 

It  is  in  defining  the  limits  of  the  three  great  de- 
partments of  government,  and,  by  proper  checks  and 
securities,  preserving  the  principle  of  representation 
in  regard  both  to  the  exercise  of  the  power,  and  the 
enjoyment  of  the  right,  that  a  written  constitution 


46  LECTURES    OM 

possesses  great  and  manifest  advantages  over  those 
which  rest  on  traditionary  information,  or  which  are 
to  be  collected  from  the  acts  of  the  government  it- 
self. If  the  people  can  refer  only  to  the  ordinances 
and  decrees  of  their  rulers  to  ascertain  their  rights, 
it  is  obvious  that,  as  every  such  act  may  introduce  a 
new  principle,  there  can  be  no  stability  in  the  Con- 
stitution. The  powers  of  the  representative  and  of 
the  constituent  are  inverted ;  and  the  Legislature  is, 
from  its  omnipotence,  enabled  to  alter  the  Constitu- 
tion at  its  pleasure.  Nor  can  such  laws  be  question- 
ed by  individuals,  or  declared  void  by  the  courts  of 
justice,  as  they  may  with  us,  where  the  power  of  the 
Legislature  itself,  is  controlled  by  the  Constitution. 

A  written  constitution,  therefore,  which  may  thus 
be  appealed  to  by  the  people,  and  construed  and  en- 
forced by  the  judicial  power,  is  most  conducive  to 
the  happiness  of  the  citizen,  and  the  .safety  of  the 
commonwealth ;  and  it  was  reserved  for  the  present 
age,  and  the  citizens  of  this  country,  fully  to  appre- 
ciate and  soundly  to  apply  the  great  principle  of  popu- 
lar representation,  and  to  afford  the  first  practical  ex- 
ample of  a  "  Social  Contract."  In  England,  one 
only  of  the  co-ordinate  branches  of  government  is  sup- 
posed, by  the  Constitution,  to  represent  the  people ; 
and  the  provincial  constitutions  of  the  American  Col- 
onies (with  but  few  exceptions)  had,  at  the  period 
of  our  Revolution,  been  modelled  in  conformity  with 
the  same  theory.  Their  charters  were  originally 
flamed,  or  subsequently  modified,  so  as  to  exclude 
the  principle  of  representation  from  the  executive 
department,  of  which,  as  in  England,  the  judicial 
was  considered  as  a  subordinate  branch.  The  solid 
foundations  of  popular  government  had,  nevertheless, 
been  laid ;  and  the  institutions  received  from  the 
mother-countrv  were  admirably  adapted  to  prepare 


CONSTITUTIONAL    JURISPRUDENCE.  47 

the  way  for  a  temperate  and  rational  Democratical 
Republic. 

As  the  discoveries  which  had  been  made  in  Amer- 
ica by  European  navigators  were  deemed  to  confer 
the  exclusive  right  of  occupancy  upon  their  respect- 
ive sovereigns,  those  parts  of  the  Continent  which 
had  been  claimed  as  the  reward  of  English  enter- 
prise, were  appropriated  as  British  colonies,  either 
by  extensive  grants  of  territory  and  jurisdiction  to  fa- 
voured individuals,  or  by  encouraging  settlers  at  large 
by  limited  territorial  grants,  reserving  the  general 
domain  of  the  province  to  the  crown,  and  providing 
for  the  exercise  of  the  whole  jurisdiction,  under  its 
authority.  Hence  two  sorts  of  provincial  govern- 
ments had  arisen  :  first,  those  denominated  royal  gov- 
ernments, in  which  the  general  domain  continued  in 
the  crown  ;  and,  secondly,  proprietary  governments, 
in  which  both  the  territory  and  jurisdiction  were 
granted  by  the  king  to  one  or  more  of  his  subjects. 
In  the  former  case,  the  chief  executive  magistrate  was 
appointed  by  the  crown  :  in  the  latter,  by  the  propri- 
etaries :  in  both,  the  legislative  power  was  vested, 
wholly  or  partially,  in  the  people  ;  subject,  in  the 
one  case,  to  the  control  of  the  king  in  council,  and 
in  the  other,  to  that  of  the  proprietary.  In  some  few 
of  the  colonies,  indeed,  the  power  of  legislation  was 
uncontrolled,  as  we  have  seen,  by  the  parent-state  ; 
so  that,  previously  to  the  Revolution,  the  colonists 
liad  long  been  accustomed  to  elect  representatives  to 
compose  the  more  numerous  branch  of  their  Legisla- 
ture, and  in  some  instances  the  second,  or  less  nu- 
merous branch,  and  even  their  chief  executive  ma- 
gistrate. No  hereditary  powers  had  ever  existed  in 
die  colonial  governments,  and  all  political  power  ex 
ercised  in  them  was  derived  either  from  the  people 
&a  from  the  king. 


48  LECTURES    ON 

The  powers  of  the  crown  being  abrogated  by  th** 
successful  assertion  of  our  independence,  the  peopI<3 
remained  the  only  source  of  legitimate  authority  ; 
and  when  the  citizens  of  the  several  states  proceeded 
to  form  their  respective  constitutions,  the  materials 
in  their  possession,  as  well  as  their  former  habits, 
and  modes  of  thinking  and  acting  on  political  sub- 
jects, were  peculiarly  favourable  to  governments  rep- 
resentative in  all  the  three  departments  ;  and,  accord- 
ingly, such  governments  were  universally  adopted. 
Under  various  modifications  and  forms,  produced  ir 
a  great  degree  by  ancient  habits,  the  same  general 
principles  were  established  in  every  state.  In  gen- 
eral, the  legislative,  executive,  and  judicial  powers 
were  kept  distinct,  with  the  manifest  intention  of 
rendering  them  essentially  independent  of  each  oth- 
er. The  Legislature  was,  for  the  most  part,  divided 
into  two  branches,  and  all  persons  holding  offices 
of  trust  or  profit  were  excluded  from  it.  The  su- 
preme executive  magistrate  was  also  rendered  elect- 
ive, and  a  strong  jealousy  of  his  power  was  every- 
where apparent.  The  superior  judges  received  their 
appointments  from  the  Legislature  or  the  executive, 
and  in  most  instances  the  tenure  of  their  offices  was 
during  good  behaviour. 

These  principles  formed  the  common  and  original 
basis  of  the  American  Republics,  and  were  adhered 
to  in  the  Federal  Constitution,  v/hich,  while  it  unites 
ihcm  as  one  nation,  guaranties  their  separate  and 
residuary  sovereignty.  The  same  fundamental  prin- 
ciples have  also  been  recognised  and  adopted  in  the 
new  states  since  erected  from  the  territory  ceded 
by  individual  states  for  the  common  benefit,  or  ac- 
quired by  negotiation  oi  purchase,  and  subsequent- 
ly admitted  into  the  Union.  There  were,  how- 
ever,  several   departures  (run)  this  genera]  outline, 


CONSTITUTIONAL    JURISPRUDENCE.  iU 

which  in  some  instances  have  been  superseded  by 
subsequent  amendments,  and  in  others  retained  in 
the  original  Constitution,  and  imitated  in  some  of 
I  hose  which  have  been  more  recently  established. 
In  some  cases  the  Legislature  consisted  of  a  single 
Dody ;  but  this  peculiarity  was  soon  very  generally 
ib'ii.Joned,  and,  except  in  Vermont,  no  longer  exists, 
[n  some  of  the  slates  the  tenure  of  judicial  office  is 
for  a  term  of  years  ;  and  in  Connecticut,  until  the 
adoption  of  a  new  Constitution  in  1818,  the  judges 
were  elected  annually,  and  formed  one  branch  of 
die  Legislature  ;  as  is  still  the  case  in  Rhode  Island, 
whose  colonial  charter  has  even  been  copied  in  the 
first  of  these  particulars  by  some  of  the  younger 
members  of  the  National  Union."*^  The  qualifications 
requisite  to  confer  the  privileges  of  an  elector,  and 
to  constitute  eligibility  to  office,  are  also  various  ; 
and  the  second  branch  of  the  Legislature  is  frequently 
differently  constituted  in  different  states.  On  some, 
a  sfreater — on  others,  a  less  effect  is  discernible,  to 
render  it  an  effectual  check  upon  the  more  numerous 
or  popular  branch,  either  by  prolonging  the  term  for 
which  its  members  are  elected,  or  requiring  higher 
qualifications  in  them,  or  their  constituents. 

In  constituting  the  executive  power,  there  appears 
equal  variety.  It  is  now,  however,  uniformly  vested, 
either  wholly  or  restrictively,  in  a  single  person.  In 
some  states  he  is  eligible  for  longer,  and  in  others 
for  shorter  periods.  In  some  he  is  invested  with  a 
qualified  negative  upon  the  laws,  which  in  others  is 
withheld  from  him.  In  some  few  of  the  states  he  is 
intrusted  with  power  to  make  appointments  to  office, 
either  absolutely,  or  subject  to  the  approval  of  a  coun- 

*  Since  this  work  was  sent  to  the  press,  a  new  Constitution 
hao  been  estabhshed  in  that  state,  by  which  the  usuaJ  division  i» 
de  of  the  Legislature  into  two  branches. 

E 


50  LECTURES     ON 

cil,  or  of  the  second  branch  of"  the  Legislature  ;  while 
in  most  states  that  power  is  exercised  exclusively  by 
both  branches  of  the  latter.  In  some  instances  the 
executive  magistrate  is  enabled  to  pursue  the  dictates 
of  his  own  unbiased  judgment ;  and  in  others  he  is 
divested  of  all  actual  responsibility — either  directly, 
by  being  placed  under  the  control  of  a  council,  or  in- 
directly, from  his  being  chosen  by  the  legislative  body, 
or  its  more  numerous  branch.  In  general,  however, 
the  ancient  institutions,  which  the  provinces  Jiad  de- 
rived by  charter  from  the  crown  of  England,  were,  at 
the  change  of  government,  so  far  preserved  as  was 
compatible  with  the  abolition  of  royal  authority  and 
colonial  dependance. 

Among  the  most  valuable  of  the  institutions  retain- 
ed by  the  states  on  the  change  of  government,  was 
that  system  of  jurisprudence  by  which  the  absolute 
and  inalienable  rights  of  the  people  were  recognised 
and  secured,  their  relative  rights  or  civil  privileges 
regulated  and  maintained,  and  offences  against  pub- 
lic justice  investigated  and  punished.  It  was  held  as 
a  fundamental  maxim,  that  the  colonists,  as  English 
subjects,  were  entitled  to  the  benefits  and  protection 
of  the  common  law,  and  of  such  parts  of  the  statute 
law  of  Great  Britain  as  were  applicable  to  their  sit- 
uation. This  system  of  jurisprudence  prevailed  in 
all  the  colonies.  It  was  brought  from  England  by 
the  original  settlers,  in  those  planted  under  her  au- 
thority, and  had  been  gradually  and  silently  extended 
to  those  provinces  which  had  been  conquered  by  her 
arms ;  so  that  before  the  Kevolution  it  had  been 
universally  established  as  their  municipal  code,  so 
far  as  it  was  adapted  to  their  circumstances  ;  and  it 
was  claimed  by  the  Congress  of  1774  as  a  branch 
of  those  "  indubitable  rights  and  liberties  tf  wiiiph 
the  respective  colonies  were  entitled." 


CONSTITUTIONAL     JURISPRLDENCE.  61 

The  most  essential  of  these  privileges  were  those 
natural  rights,  which  are,  indeed,  common  to  all  man- 
kind, but  which,  in  virtue  of  Magna  Charta,  and  oth- 
er fundamental  laws  of  the  mother- country,  were 
deemed  to  be  the  peculiar  birthright  and  inherit- 
ance of  British  subjects.  They  comprise,  according 
to  Sir  William  Blackstone,  that  residuum  of  natural 
liberty  which  is  not  required  by  the  laws  of  society 
to  be  sacrificed  to  public  convenience,  as  well  as 
those  civil  priviles^es  which  society  engages  to  provide 
in  lieu  of  those  natural  liberties  so  given  up  by  indi- 
viduals. In  the  first  class,  the  learned  commentator 
comprehends,  1st.  The  right  of  personal  security; 
2d.  'fhe  right  of  personal  liberty  ;  and,  3d.  The  right 
of  private  property.  The  other  privileges  of  the  same 
character,  but  subordinate  in  degree,  to  which,  as 
English  subjects,  the  colonists  were  entitled,  were, 
1st.  The  Constitution,  powers,  and  privileges  of  their 
provincial  legislatures  ;  2d.  The  limitation  of  the 
king's  prerogative  by  certain  and  notorious  bounds  ; 
3d.  The  right  of  applying  to  the  courts  of  justice  for 
the  redress  of  injuries  ;  the  most  Taluable  incidents 
to  which  privilege,  were  the  right  of  trial  by  -ury 
and  the  benefit  of  the  writ  of  Habeas  Corpus ;  4th. 
The  right  of  petitioning  the  king,  or  either  branch 
of  the  imperial  or  provincial  Legislature,  for  the  re- 
dress of  grievances ;  and,  5th.  That  of  keeping  arms 
for  their  defence  ;  which  was,  indeed,  a  public  al- 
lowance, under  certain  restrictions,  of  the  natural 
right  of  resistance  and  self-preservation. 

In  these  several  articles  are  contained  what  are 
emphatically  termed  *'  the  liberties  of  Englishmen." 
To  their  enjoyment,  the  colonists  were  entitled  by 
birthright  as  British  subjects  ;  and,  to  vindicate  that 
right,  they  first  took  up  arms  against  the  parent-state, 
and  ultimately  withdrew  from  her  dominion.  Upon 
that  separation,  and  th^  sul)sequent  establishment  of 


52  LECTURES     ON 

new  governments  of  their  own  choice,  they  were 
careful  to  provide  for  the  secure  and  permanent  en- 
joyment of  these  their  natural  rights,  and  of  the  civil 
privileges  designed  for  their  maintenance,  or  substi- 
tuted as  their  equivalents.  As  additional  safeguards 
for  their  protection,  they  established,  moreover,  those 
great  engines  of  modern  opinions,  freedom  of  speech 
and  the  liberty  of  the  press,  uncontrolled  by  any  but 
proper  moral  restraints.  But  while  some  of  the  states 
expressly  recognised,  and  others  tactily  accepted,  as 
a  part  of  their  municipal  code,  those  portions  of  the 
common  law  which  had  been  previously  in  force  in 
the  colonies,  and  were  now  farther  modified  by  the 
change  of  government,  they  universally  abolished, 
either  by  their  constitutions,  or  by  statutes  deemed 
fundamental,  that  feature  of  the  English  system  of 
real  property  which,  in  its  character  of  a  mere  civil 
regulation,  is,  nevertheless,  like  most  others  of  the 
same  feudal  origin,  powerfully  and  essentially  politi- 
cal in  its  eflects— I  mean  the  right  of  Primogeni- 
ture. This  harsh  and  inequitable  regulation,  which, 
indeed,  is  not  peculiar  to  England,  but  prevails  in 
most  of  the  feudal  monarchies  of  Europe,  was  re- 
jected in  all  the  American  States,  and  each  state  en- 
acted its  own  law  of  descents,  differing,  indeed,  in 
their  details,  but  agreeing  in  the  general  principle  of 
equal  distribution. 

The  frequent  violation  of  the  natural  and  social 
rights  of  the  colonists  by  both  king  and  Parliament, 
and  the  repeated  denials  of  redress,  were  set  forth  in 
the  Declaration  of  Independence  as  the  cause  and 
justification  of  dissolving  the  mutual  ties  of  sovereign- 
ty and  allegiance  ;  and  upon  forming  the  state  con- 
stitutions, these  rights  were  in  some  form  or  others 
and  with  a  greater  or  loss  degree  of  particularity  and 
precision,  enumerated,  and  declared  inalienable,  and 
reserved  inviolably  to  every  citizen. 


CONSTITUTIONAL    JURISPRUDENCE.  53 

Such  were  the  institutions  of  the  several  states, 
and  such  the  rights  of  their  individual  citizens,  when 
they  conjointly  became  parties  to  the  federal  com- 
pact. The  same  great  principle  of  representation^ 
which  had  been  imbodied  in  the  state  constitutions, 
was  adopted  as  the  foundation  of  the  new  govern- 
ment established  for  the  Union  ;  and  the  same  natu- 
ral, political,  and  civil  rights  and  privileges  which 
had  been  declared  to  be  the  inalienable  inheritance 
of  the  people,  as  citizens  of  the  respective  states, 
were  asserted  to  belong  to  them  as  citizens  of  the 
Union  ;  among  which,  as  we  have  seen,  are  included- 
such  provisions  of  the  common  law  as  were  applica- 
ble to  their  situation  and  circumstances.  There  are 
besides,  many  recognitions  of  the  existence,  at  least, 
of  the  common  law,  both  in  the  Constitution  of  the 
United  States,  and  in  the  articles  by  which  it  has 
been  amended  ;  and  both  contain  frequent  references 
to  the  principles,  provisions,  and  terms  peculiar  to 
that  system  of  jurisprudence. 

It  has,  nevertheless,  been  a  subject  of  much  dis- 
cussion, whether  the  United  States,  in  their  national 
capacity,  have  actually  adopted  it ;  and  to  what  ex- 
tent, if  at  all,  it  may  be  considered  as  forming  a  part 
of  the  national  jurisprudence.  But  whatever  may  be 
the  doubts — whether  the  common  law,  in  its  broadest 
sense,  and  to  the  same  extent,  mutatis  mutandis^  as 
it  prevails  in  England,  was  recognised  as  the  com- 
mon law  of  the  Union — it  cannot  be  denied  that 
it  forms  the  substratum  of  the  laws  of  all  the  original 
members  of  the  confederacy  ;  nor  that  the  Constitu- 
tion of  the  United  States,  as  well  as  the  constitutions 
and  laws  of  the  several  states,  were  made  in  refer- 
ence to  the  pre-existing  validity  of  the  common  law, 
in  the  colonial  and  state  governments.  In  many  ca- 
ses, the  language  of  these  public  acts  would  be  inex- 


54  LECTURES  ON 

plicable  without  recourse  to  the  common  law  of  Eng 
/and  ;  and  not  only  is  the  existence  of  that  system 
supposed  by  the  Constitution  of  the  United  States, 
but  it  is  constantly  appealed  to  for  the  construction 
of  powers  granted  to  the  Federal  Government.  The 
general  question,  however,  as  to  the  application  and 
influence  of  the  system,  in  reference  to  our  national 
institutions,  has  not  been  settled  upon  clear  and  defi- 
nite principles,  and  may  still  be  regarded,  especially 
in  civil  cases,  as  open  for  farther  judicial  investi- 
gation. The  prevailing  opinion  at  present  seems  to 
be,  that,  under  the  Federal  Government,  the  common 
law,  considered  as  a  source  of  jurisdiction,  was  never 
in  force,  but  considered  merely  as  a  means  or  instru- 
ment of  exercising  the  jurisdiction  conferred  by  the 
Constitution,  it  does  exist  in  full  validity,  and  forms 
a  safe  and  beneficial  portion  of  our  national  code. 

The  Constitution  erected  on  this  basis,  and  from 
these  materials,  is  declared,  by  its  preamble,  to  be 
*'  ordained  and  established  hy  the  people  of  the  United 
States,  in  order  to  form  a  more  perfect  union,  estab- 
lish justice,  ensure  domestic  tranquillity,  provide  for 
the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  themselves  and 
their  posterity."  By  the  terms,  therefore,  of  this 
compact,  the  states  are  no  longer  known  to  each 
other  merely  in  their  sovereign  and  corporate  ca- 
pacities ;  but,  without  destroying  their  previous  or- 
ganization, the  people  of  the  respective  states  united 
with  each  other  in  founding  a  new  government, 
operating  directly  on  themselves  as  individuals,  for 
the  attainment  of  objects  for  which  neither  the  states 
separately,  nor  the  former  confederation  had  been 
found  competent.  The  principle  of  representation 
is  applied  in  it,  not  only  to  the  individual  citizens  of 
the  respective  states  as  citizens  of  the  United  States, 


CONSTITUTIONAL    JURISPKUDENCE.  55 

but  also  to  the  individual  states  themselves ;  and  it 
pervades  the  three  great  departments  of  which  the 
government  consists. 

Besides  a  general  delegation  of  the  legislative,  ex- 
<  cutive,  and  judicial  powers  to  distinct  departments, 
so  far  as  necessary  to  effect  the  purposes  of  national 
union,  the  Constitution  specially  defines  the  powers 
and  duties  of  each  of  those  branches  of  the  govern- 
ment. This  was  essential  to  peace  and  safety,  in  a 
government  invested  with  specific  powers  for  national 
objects,  and  formed  from  the  union  of  several  inde- 
pendent states,  as  well  as  of  the  individuals  com- 
posing them  ;  each  of  the  former  yielding  for  that 
purpose  the  requisite  portion  only  of  its  sovereignty, 
while  they  retained  the  executive  control  of  their  lo- 
cal concerns. 

In  analyzing  the  Federal  Constitution,  it  may  there- 
fore be  considered,  as  has  already  been  indicated,  un- 
der two  principal  points  of  view,  viz. : 

First.  With  regard  to  the  particular  structure  and 
organization  of  the  government,  and  the  distribution 
of  its  powers  among  the  several  branches,  in  refei- 
ence  to  which,  the  necessary  provisions  for  their  or- 
ganization into  separate  departments,  for  making, 
executing,  and  expounding  the  laws ;  for  rendering 
efficient  those  powers,  and  for  confining  them  to 
their  respective  spheres,  as  well  as  for  ascertaining 
the  limits  between  the  national  and  state  jurisdictions, 
are  all  contained  in  that  instrument.  Besides  which, 
it  comprises  the  necessary  regulations  in  respect, 

Secondly,  To  the  nature,  extent,  and  limitation  of 
the  powers  conferred  on  the  government  of  the  Union, 
and  the  restraints  imposed  on  the  state  governments. 

All  the  powers  requisite  to  secure  the  objects  of 
national  union  are  vested  in  the  Federal  Govern- 
ment, while  those  powers  only,  which  aie  not  essen- 


56  LECTURES    OiN 

tial  to  these  objects  are  reserved  to  the  state  govern- 
ments, or  to  the  people.  In  all  other  respects,  the 
sovereignty  of  the  individual  states  remains  unaltei- 
ed.  The  respective  obligations  of  duty  and  allegi- 
ance to  them  are  unimpaired,  except  that,  in  all  cases 
within  the  range  of  its  jurisdiction,  the  higher  obh- 
gations  of  duty  and  allegiance  to  the  General  d'ov- 
ernment  necessarily  supersedes  that  which  womd 
otherwise  have  remained  to  the  separate  states. 
From  the  nature  of  the  case,  the  national  and  state 
sovereignties  cannot  be  coequal ;  for  two  govern- 
ments of  concurrent  right  and  authority  in  every 
respect,  cannot  exist  in  the  same  society.  The  su- 
premacy was,  consequently,  conferred  on  the  Federal 
Government,  as  the  government  of  the  whole,  rather 
than  on  the  governments  of  the  constituent  parts  ; 
otherwise,  the  establishment  of  the  former,  instead 
of  "  promoting  domestic  tranquillity,"  would  have 
produced  perpetual  discord  and  disorder.  The  Con 
vention  therefore  declared,  in  the  name  of  the  people, 
that  the  "  Constitution,  and  the  laws  of  the  United 
States  made  in  pursuance  thereof,  and  all  treaties" 
made  under  'he  authority  of  the  Union,  should  be 
the  supreme  law  of  the  land. 

The  powers  thus  conferred  on  the  government  of 
the  United  States  may  be  reduced  to  difierent  classes, 
as  they  relate  to  different  objects,  each  of  which  will 
be  the  subject  of  distinct,  full,  and  particular  investi- 
gation, under  their  appropriate  heads  and  subdivis- 
ions. But  from  the  view  already  presented  of  the 
fundamental  principles  of  the  Federal  Government, 
in  connexion  with  the  general  outline  exhibited  of  its 
organization,  it  may  be  perceived  that  the  Constitu 
tion  of  the  United  States  was  erected  on  the  founda 
lion  of  those  inalienable  rights,  which  the  people  of 
the  several  states  derive,  in  common  with  all  man 


CONSTITUTIONAL    JURISPRUDENCE.  57 

kind,  from  their  Creator,  and  of  those  institutions  and 
privileges  which  they  inherited  from  their  ancestors 
as  subjects  of  the  British  crown,  modiiied  by  their 
situation  and  circumstances  as  colonists,  and  subse- 
quently varied  by  their  successful  vindication  of  their 
natural  and  political  rights  in  the  assertion  of  their 
independence  ;  that  it  was  formed  on  the  Republican 
{principle  oi  representation  in  all  its  branches,  adopted 
i)y  the  people  themselves,  and  not  by  their  state  le- 
gislatures, and  establishes   a  government  proper, 
operating  upon  every  individual  residing  under  r.s 
jurisdiction,  and  extending  over  the  Union  as  one 
national  community  or  body  politic — composed,  not 
only  of  the  people  of  the  several  states,  but  to  a  cer- 
tain degree  of  the   states  themselves,  thus  happily 
combining  the  principles  of  federation  and  consoli- 
dation, for  the  purpose  of  investing  the  states,  as  well 
as  the  people,  with  one  national  character ;  that,  as 
the  Union  thus  formed  constitutes  the  nation,  so  the 
people  of  the  several  states  have,  for  all  the  purposes 
of  the  Constitution,  become  one  people,  owing  local 
allegiance  to  the  states  in  which  they  reside,  para- 
mount allegiance  to  the  National  Government ;  that  all 
the  powers  requisite  to  secure  the  objects  of  national 
union  are  vested  in  the  General  Government,  while 
those  only  which  are  not  essential  to  that  purpose 
are  reserved  to  the  states  or  the  people  ;  that  the 
National  Government,  though  united  in  its  powers  to 
national  objects,  is  supreme  in  the  exercise  of  those 
powers  ;  and  that,  whenever  any  of  those  powers,  in 
their  exercise,  come  in  collision  with  the  powers  re- 
served to  the  states,  the   state   authority,  which  is 
suhordijiate,  must  yield    to    the    national   authority, 
which  is  supreme. 

Each  state,  nevertheless,  although  no  longer  pos- 
sessing the  absolute  independence  essential  to  it  aa 


58  LECTURES    ON 

a  separate  national  sovereignty,  must  slill  be  regard- 
ed as  sovereign  in  all  matters  not  transferred  to  the 
General  Government.  The  supremacy  of  the  Union 
on  all  those  points  which  are  thus  surrendered,  and 
the  sovereignty  of  the  states  in  those  not  ceded  to 
the  nation,  have  been  justly  considered  as  two  co- 
ordinate qualities,  in  attempting  to  ascertain  the  real 
meaning  of  the  Constitution,  in  cases  which,  from 
the  uncertainty  and  imperfection  of  human  language, 
it  is  liable  to  dispute  or  doubt.  As  different  views 
and  interests  have  prevailed,  different  theories  for  the 
construction  of  the  Constitution  have  been  advanced. 
It  has  sometimes  been  regarded  as  a  mere  confeder- 
acy or  alliance  between  the  states,  implying  no  sur- 
render of  their  sovereign  power  or  character ;  but 
this  opinion  is  inconsistent  with  the  nature  of  the 
federal  compact,  as  explained  by  judicial  interpreta- 
tion of  conclusive  authority.  Some  jurists  and  poli- 
ticians, how^ever,  who  admit  that  it  constitutes  a 
government,  have  yet  contended  that,  inasmuch  as  it 
establishes  a  government  of  limited  powers,  it  should 
be  construed  strictly ;  while  others  have  asserted 
that,  from  the  extensive  and  high  objects  to  be  ac- 
complished by  the  exercise  of  these  powers,  the 
most  liberal  interpretation  should  be  allowed.  As, 
on  the  one  hand,  a  strict  adherence  to  the  letter, 
without  regarding  the  spirit  or  pursuing  the  manifest 
sense  of  the  instrument,  can  only  proceed  from 
groundless  jealousy  or  concealed  hostility  to  the 
system,  so,  on  the  other,  a  liberal  construction  may, 
from  the  possession  or  desire  of  power  under  it,  be 
carried  to  a  pernicious  extreme.  Limitations  and 
restrictions  may  be  conceived  to  exist,  by  some, 
which  would  render  nugatory  the  national  authority, 
and  were,  therefore,  never  meant  to  be  imposed  ; 
while  concessions  of  power  may  be  imagined  or  as* 


CONSTITUTIONAL    JURISPRUDENCE.  59 

sumed  by  others,  incompatible  with  the  sovereignty 
actually  retained  by  the  states,  if  not  necessary  to 
give  effect  to  the  federal  supremacy.  The  true  rule 
of  interpretation  seems  to  be  no  other  than  that 
which  is  applied,  in  all  cases  of  correct  and  impartial 
exposition,  to  deduce  the  meaning  of  the  contract 
from  its  known  design  and  entire  language ;  to 
reconcile,  and,  if  possible,  give  effect,  to  every  part 
of  the  instrument,  and,  at  the  same  time,  preserve 
the  unity  and  harmony  of  the  whole,  in  due  regard 
to  the  expressions  as  well  as  the  intentions  of  the 
parties. 

On  many  questions  which  have  already  arisen,  we 
have  the  benefit  of  the  learned  elucidations  of  the 
judicial  departments  of  the  General,  and  many  of 
the  State  Governments  ;  and  wherever  the  supreme 
federal  tribunal  has  pronounced  its  solemn  decision, 
its  authority  must  be  deemed  conclusive,  because 
that  court,  and  that  alone,  possesses  ultimate  juris- 
diction upon  all  points  of  controversy  arising  under 
the  Constitution  of  the  United  States.  But  where  a 
guide  so  certain  and  authoritative  cannot  be  found,  1 
must  endeavour,  with  the  aid  of' inferior  lights,  to 
discover  the  true,  but  latent  meaning  of  a  Constitution 
which,  in  the  language  of  that  venerable  and  accom- 
plished jurist,  the  late  chancellor  of  this  state,  "  must 
always  be  more  admired  as  it  is  more  considered 
And  better  understood." 


LECTURE  III. 

OF    THE    LEGISLATIVE    POWFPw. 

The  first  general  point   of  view  in  which  it 
was  proposed  to  consider  the  Federal  Constitu- 


60  LECTURES    ON 

tion  was,  "  with  regard  to  the  particular  structure 
and  organization  of  the  government^  a?id  the  distri- 
bution of  its  powers  among  its  several  branches,^'* 

I  have  already  had  occasion  to  advert  to 
the  rule  inculcating  the  separation  of  the  legis- 
lative, executive,  and  judicial  departments  of 
government,  and  to  remark  that  it  had  been  sub- 
stantially adhered  to  in  framing  our  National 
Constitution.  These  different  branches,  how- 
ever, have  not,  in  all  cases,  been  kept  entirely  dis- 
tinct; and  it  therefore  becomes  necessary  to  as- 
certain, in  limine^  the  meaning  of  a  political  ap- 
othegm, of  which  none  is  of  more  intrinsic  value, 
or  stamped  with  the  approbation  of  more  en- 
lightened authority. 

From  the  sense  in  which  the  maxim  in  question 
was  first  applied  by  Montesquieu  to  the  English 
Constitution,  as  well  as  from  the  mode  in  which 
it  has  been  practically  acknowledged  in  several 
of  our  state  constitutions,  it  is  evident  that  it 
was  never  understood  to  require  that  the  three 
departments  should  be  wholly  unconnected  with 
each  other ;  on  the  contrary,  it  has  been  satisfac- 
torily shown  by  the  authors  of  the  "Federalist," 
that,  unless  they  be  so  far  connected  and  blend- 
ed as  to  give  to  each  a  constitutional  control  over 
the  others,  the  degree  of  separation  which  the 
rule  requires  cannot  be  maintained.  It  is  obvi- 
ous, indeed,  that  the  powers  properly  belonging 
to  one  of  the  departments  ought  not  to  be  direct- 
ly and  completely  administered  by  either  of  the 
others.  It  is  equally  clear  that,  in  reference  to 
each  other,  neither  branch  should  possess,  di- 
rectly or  indirectly,  an  overruling  influence  in 
the  execution  of  their  respective  powers.  And 
although  in   our  governments  each  department 


CONSTITUTIONAL    JURISPRUDENCE  61 

derives  its  authority  from  the  same  source,  and 
equally  represents  the  people,  yet  the  legislative 
branch,  as  its  constitutional  powers  are  at  once 
more  extensive  and  less  susceptible  of  precise 
limitation  than  either  of  the  others,  must  neces- 
sarily possess  a  greater  preponderance  in  the 
political  system,  and  act  with  greater  force  upon 
the  public  mind.  In  order,  therefore,  to  main- 
tain in  practice  the  requisite  partition  of  pow- 
er, the  internal  structure  of  the  government  would 
be  so  contrived  as  to  render  its  constituent  parts, 
by  their  mutual  relations,  the  means  of  keeping 
each  other  within  their  proper  spheres  of  action. 
The  great  security  against  a  gradual  concen- 
tration of  the  several  powers  of  government 
in  the  same  hands  consists  in  giving  to  those 
who  administer  them  in  one  department  the  ne- 
cessary constitutional  means  and  personal  mo- 
tives to  resist  encroachments  from  the  others. 
A  dependance  on  the  people  is,  no  doubt,  the 
primary  control  on  the  government  j  but  experi- 
ence had  show^n  the  framers  of  our  Constitution 
the  necessity  of  auxiliary  precautions;  and  the 
remedy  they  devised  for  the  natural  predomi- 
nance of  the  legislative  authority  was  the  divis- 
ion of  the  legislative  body  into  two  branches, 
and  rendering  them,  by  different  modes  of  elec- 
tion and  principles  of  action,  as  little  connected 
with  each  other  as  the  nature  of  their  common 
functions  and  dependance  on  the  people  would 
admit.  The  comparative  weakness  of  the  exec- 
utive branch,  on  the  other  hand,  was  fortified, 
by  investing  it  with  a  qualified  negative  on  the 
acts  of  the  Legislature,  and  connecting  it  w^tli  the 
weaker  branch  of  that  stronger  power,  by  allow- 
ing the  latter  to  participate  in  certain  executive 


62  LECTURES    ON 

duties  ;  while  the  judicial  department  was  deem* 
ed  to  be  equally  secure,  from  the  nature  of  its 
constitutional  powers,  the  permanency  of  its 
character,  and  the  independent  tenure  by  which 
its  functionaries  hold  their  offices.  Thus  the 
mutual  participation,  to  a  limited  extent,  of  the 
several  branches  of  the  goverment  in  each  oth- 
er's power,  ^as  rendered  subservient  to  their 
mutual  independence,  and  the  apparent  violation 
of  a  fundamental  principle  of  the  Constitution 
converted  into  a  security  for  its  preservation. 

1  now  proceed  to  examine  and  explain  the  or- 
ganization of  these  separate  departments  of  gov- 
ernment, as  established  by  the  Federal  Constitu- 
tion, in  their  order,  and  commence  with  a  review 
of  the  Legislative  Power ;  under  which  title  1  shall 
consider. 

First.  The  constituent  parts  of  the  Legislature, 
with  the  mode  of  their  appointment. 

Secondly.  Their  joint  and  several  powers  and 
privileges. 

And,  Thirdly.  Their  method  of  enacting  laws, 
with  the  times  and  modes  of  assembling  and  ad- 
journing. 

I.  All  legislative  powers  granted  by  the  Con- 
stitution are  vested  in  a  Congress  of  the  United 
States,  consisting  of  a  Senate  and  a  House  of 
Representatives.  These  terms,  conferring  the 
legislative  authority,  impart  its  limitation  to  the 
objects  specified  in  the  Constitution.  And,  be- 
sides the  end  already  stated  to  have  been  pro- 
posed by  the  division  of  the  Legislature  into  two 
separate  and  independent  branches,  another  im- 
portant object  is  accomplished  by  it,  and  that  is, 
preventing  the  evil  effects  of  excitement  and  pre- 
cipitation, which  had  been  found,  by  sad  experi« 


CONSTITUTIONAL    JURISPRUDENCE.  ()3 

snce,  to  exert  a  powerful  and  dangerous  sway  in 
single  assemblies. 

No  portion  of  the  political  history  of  mankind, 
according  to  the  elder  President  Adams,*  is  more 
full  of  instructive  lessons  on  this  subject,  or  con- 
tains more  striking  proofs  of  the  factious  insta- 
bility and  turbulent  misery  of  states  under  the 
dominion  of  a  single  unchecked  legislature,  than 
the  annals  of  the  Italian  Eepublics  of  the  Middle 
Ages.  They  arose  in  great  numbers,  and  with 
dazzling  but  transient  splendour,  in  the  interval 
between  the  falls  of  the  Western  and  Eastern 
Empires,  and  were  all  constituted  with,  a  single 
unbalanced  legislative  assembly.  They  were 
alike  wretched  in  existence,  and  all  ended  in 
similar  disgrace.  At  the  commencement  of*  the 
French  Revolution,  many  of  their  speculative 
writers,  pseudo-philosophers,  and  visionary  pol- 
iticians, seem  to  have  been  struck  with  the  sim- 
plicity  of  a  legislature  consisting  of  a  single  cham- 
ber, and  concluded  that  more  was  useless  and 
expensive.  This  led  the  veteran  statesman  to 
write  and  publish,  during  his  residence  in  Eu- 
rope, his  great  work,  entitled,  "  ^  Defence  of  tlu 
Constitutions  of  Government  of  the  United  States, ^^ 
in  which  he  vindicates,  with  great  learning  and 
ability,  the  advantage  and  necessity  of  dividing 
the  Legislature  into  two  branches,  and  of  distrib- 
uting the  powers  of  government  among  distinct 
departments.  He  reviewed  the  history  and  ex< 
amined  the  constitutions  of  all  the  mixed  and 
free  governments  which  had  existed  from  the 
earliest  records  of  time,  in  order  to  deduce,  with 
more  certainty  and  force,  his  great  practical 
truth,  that  single  legislatures,  without  check  or 
♦  Defence  of  the  American  Constitutions. 


64  LECTURES    ON 

balance,  or  a  government  with  all  authority  col* 
jected  in  one  centre  or  department,  were  vio- 
lent, intriguing,  corrupt,  and  tyrajinical  domina- 
tions of  majorities  over  minorities,  uniformly  and 
rapidly  terminating  their  career  in  profligate 
despotism. 

This  visionary  notion  of  a  single  assembly 
was,  nevertheless,  imbodied  in  the  constitution, 
adopted  by  France  in  1791  ;  and  the  same  false 
and  vicious  principle  continued  for  some  time  to 
prevail  with  the  sublimated  theorists  of  that  coun- 
try. A  single  chamber  was  again  established  in 
the  plan>  of  government  published  by  the  Con- 
vention in  1793.  Their  own  suilerings,  however, 
It  length  taught  the  French  people  to  listen  to 
:hat*  oracle  of  wisdom,  the  experience  of  other 
nations  and  other  ages,  which,  amid  the  tumult 
and  violence  of  the  passions  which  influenced 
them,  they  had  utterly  disregarded,  and  which, 
under  any  circumstances,  their  national  vanity 
would  otherwise  have  led  them  to  despise.  "  No 
people,"  said  Boissy  (TJinglas^  one  of  their  great- 
est orators,  "  no  people  can  testify  to  the  world, 
with  more  truth  and  sincerity  than  the  French, 
the  dangers  inherent  in  a  single  legislative  assem- 
bl}^,  and  the  point  to  which  faction  may  mislead 
an  assembly  without  check  or  counterpoise." 
We  accordingly  find,  that  in  the  next  of  their 
ephemeral  constitutions,  which  appeared  in  1797, 
there  was  a  division  of  the  Legislature  into  twc 
co-ordinate  branches  ;  and  the  idea  of  two  cham 
hers  was  never  abandoned,  either  under  the  mil 
itary  despotism  of  the  empire,  or  in  the  charters 
obtained  upon  the  restoration  of  the  monarchy, 
or  upon  the  subsequent  revolution  and  change 
wf  dynasty. 


CONSTITUTIONAL    JURISPRUDENCE.  65 

Our  country  had,  indeed,  afforded  more  than 
one  instance  in  point,  in  which,  fortunately,  how- 
ever, the  evil  consequences  were  by  no  means 
so  great  as  those  experienced  in  France.  The 
legislatures  of  Pennsylvania  and  Georgia  con- 
sisted originally  of  a  single  house  5  but  the  in- 
stability and  passion  Avhich  marked  their  pro- 
ceedings, far  short  as  they  were  of  the  least  of 
the  atrocities  of  the  French  National  Convention, 
were  the  subject  of  much  public  animadversion 
at  the  time  ;  and  in  the  subsequent  reforms  of 
their  constitutions,  the  people  of  those  states 
were  so  sensible  of  this  defect,  and  of  the  evils 
they  had  suffered  from  it,  that  a  Senate  was  in- 
troduced into  both  of  their  amended  constitu- 
tions. There  was  a  farther  reason  for  the  divis- 
ion of  the  legislative  powers  in  the  government 
of  the  United  States,  arising  from  its  federative 
character,  but  which,  from  its  peculiar  impor- 
tance, deserves  a  fuller  explanation. 

On  those  just  principles  of  public  polity  on 
which  our  Constitution  is  founded,  it  is  essential 
that  in  communities,  thoroughly  incorporated 
into  one  nation,  the  inhabitants  of  every  geo 
graphical  district  or  territorial  subdivision  should 
have  their  proportional  share  in  the  government  j 
while  among  independent  sovereign  states,  bound 
together  by  a  simple  league,  the  several  parties, 
however  unequal  in  respect  to  territory  and  popu- 
lation, should  have  an  equal  share  in  the  public 
councils.  It  was  therefore  reasonable  and  prop- 
er, that  in  a  republic  partaking  both  of  the  na- 
tional and  federal  characters,  the  government 
should  be  founded  on  both  those  principles  of 
representation.  Hence,  in  the  constitution  of  the 
legislative  powers,  the  House  of  Representatives 
F 


66  LECTURES    ON 

was  constructed  on  the  principle  o^ proportional^ 
and  the  Senate  on  that  of  equal,  representation  5 
and  although  this  equality  in  the  latter  was  evi- 
dently the  result  of  a  compromise  between  the  lar- 
ger and  smaller  states,  yet  it  afforded  a  convenient 
and  effectual  mode  of  applying  the  rule  of  com- 
bined representation  to  that  co-ordinate  branch, 
and  necessarily  induced  a  separation  of  the  two 
bodies  of  which  Congress  is  composed. 

I.  The  House  of  Representatives  was  according- 
ly founded  on  the  principles  of  proportional  rep- 
resentation ;  yet  not  purely  and  abstractedly  so, 
but  with  as  much  conformity  to  that  principle  as 
was  practicable.  It  is  composed  of  representa- 
tives of  the  people  of  the  several  states,  not  of  the 
people  of  the  United  States  at  large;  and  in  this 
respect  it  partakes  of  the  federative  quality.  Nei- 
ther are  the  qualifications  of  the  electors  uni- 
form, as  much  variety  of  opinion  and  practice 
exists  concerning  them  in  the  several  states. 
The  representatives  in  Congress  are  chosen  ev- 
ery second  year,  by  the  people  of  the  several 
states  who  are  qualified  to  vote  for  the  most  nu- 
merous branch  of  the  State  Legislature.  No  per- 
son can  be  a  representative  until  he  has  attained 
the  age  of  twenty-five  years,  and  has  been  seven 
years  a  citizen  of  the  tJnited  States ;  nor  unless 
he  is  an  inhabitar.t  of  the  state  for  which  he  is 
chosen.  When  vacancies  happen,  from  death  or 
resignation,  in  the  representation  of  any  state, 
its  executive  authority  is  directed  to  issue  writs 
of  election  to  fill  them,  either  at  a  general  or 
special  election. 

The  general  qualifications  of  electors  of  the 
most  numerous  branch  of  the  state  legislatures 
nre,   that   they  be   past  the   age   of  twenty-one 


CONSTitUriONAL    J U R I ^MlWf^i±f{^K>^^       (jl 

years,  free  resident  citizens  jbi'thd -state,  in  wjji^'h 
they  vote,  and  have  paid  taifes.     In  seme  ^of  i}^ 
states  ihey  are  required  to  pWsess  property  of  a^  \ 
certain  description  or  amoun\  and  in  others  ;io       ^ 
be  white  as  well  as  free  citizens.     These  d'lRcr^i^  K» 
qualifications  are,  in  sonne  instances,  diffbYeatly  "* 
combined,  or  restricted  and  modified j^in^j^iii- 
most  others,  are  so  large  as  to  include  all  persons 
who  are  of  competent  discretion,  and  interested 
in  the  welfare  of  the  government,  liable  to  per- 
form any  of  its  duties,  or  bear  any  of  its  burdens  : 
so   that  the  House   of  Representatives  may  be 
said  very  fairly  to  represent  the  whole  body  of 
the  people. 

Several  of  the  state  constitutions  have  pre- 
scribed the  same,  if  not  higher,  qualifications  in 
the  elected  than  in  the  electors,  and  some  of  them 
require  a  religious  test.  But  the  Constitution  of 
the  United  States  requires  no  evidence  of  prop- 
erty in  the  representative,  nor  any  declaration 
of  his  religious  belief.  He  is  merely  required 
to  be  a  citizen  of  competent  age,  and  free  from 
undue  bias  or  dependance,  by  not  holding  any 
office  of  trust  or  profit  under  the  United  States. 
The  term  for  \vhich  he  is  elected  to  serve  is  not 
so  short  as  to  prevent  his  obtaining  a  compre- 
hensive acquaintance  with  his  duties,  nor  so 
long  as  to  tempt  him  to  forget  his  dependance 
on  the  approbation  of  his  constituents.  Frequent 
elections,  moreover,  have  a  tendency  to  dimin- 
ish the  importance  of  the  office,  and  to  render 
the  people  indifferent  to  the  exercise  of  their 
right ;  while,  on  the  other  hand,  long  intervals 
between  the  elections  are  apt  to  produce  too 
great  excitement,  and,  consequently,  to  render 
the  pe^'iods   of  their  return  a  season  of  too  se- 


68  LECTURES    ON 

vere  competition  and  conflict  for  the  public  tran 
quillity.  The  Constitution  has  certainly  not  de- 
viated in  this  respect  to  the  latter  extreme,  in 
the  establishment  of  biennial  elections.  Consid- 
ering the  situation  and  extent  of  the  country, 
the  medium  adopted  combines  as  many  advan- 
tnges,  and  avoids  as  many  inconveniences,  as 
any  other  term  which  might  have  been  adopted. 

The  representatives  are  directed  to  be  appor- 
tioned among  the  states  according  to  numbers, 
which  are  determined  in  each  state  by  adding 
to  the  whole  number  of  free  persons,  exclusive 
of  Indians  not  taxed,  three  fifths  of  all  other  per- 
sons. This  rule  of  apportionment  is  obnoxious 
to  the  objection  that  three  fifths  of  the  slaves  in 
those  states  where  slavery  still  exists  are  compu- 
ted in  settling  the  representation.  But  the  pro- 
vision which  thus  permits  them  to  swell  the  pop- 
ulation, and  thereby  increase  the  political  weight 
and  influence  of  the  states  in  which  their  mas- 
ters reside,  was  the  result  of  necessary  compro- 
mise j  and  the  same  rule  that  apportions  the  rep- 
resentatives extends  to  direct  taxes:  so  that 
while  their  slaves  give  to  the  states  in  question 
an  increased  number  of  representatives  in  Con- 
gress, they  contribute  also,  when  that  mode  of 
taxation  is  resorted  to,  to  increase  the  measure 
of  their  contributions.  The  mischief,  however, 
remains,  that  their  preponderance  in  the  public 
councils,  obtained  by  these  very  means,  has  hith- 
erto prevented  the  imposition  of  direct  taxes,  ex- 
cept during  a  part  of  the  short  periods  in  which 
this  country  has  been  engaged  in  war. 

The  Constitution  directed  an  actual  enumera- 
tion of  the  people  to  be  made  within  three  years 
after  the  first  meeting  of  the  Congress  it  cro- 


CONSTITUTIONAL    JURISPRUDENCE.  69 

ated,  and  provides  one  to  be  taken,  in  virtue 
of  acts  passed  for  that  purpose,  within  every 
subsequent  period  of  ten  years.  The  number  of 
representatives  cannot  exceed  one  for  every 
thirty  thousand,  but  eacli  state  is  entitled  to  at 
least  one  representative.  Upon  the  return  of 
the  census^  it  was  conceived  by  Congress  that, 
without  invading  the  Constitution,  the  principle 
of  apportionment  might  with  advantage  be  so 
moditied  as  to  prevent  the  loss  in  the  number 
of  representatives,  arising  from  the  fractional 
parts  produced  by  the  application  of  the  ratio  of 
representation,  to  the  representative  population 
of  the  respective  states.  The  aggregate  numbers 
of  the  population  of  the  United  States,  as  ascer- 
tained by  that  census,  was  accordingly  divided  by 
the  ratio  adopted  in  the  bill,  which  was  thirty  thou- 
sand, and  the  operation  was  found  to  produce  the 
quotient  of  one  hundred  and  twenty  ;  whereupon 
that  number  of  representatives  was  apportioned 
among  the  several  states,  until  as  many  represent- 
atives as  it  would  give  were  assigned  to  each 
state  respectively  j  and  then  the  residuary  or  sur- 
plus number  was  distributed  among  the  states  hav- 
ing the  highest  fractional  numbers,  until  the  whole 
number  of  one  hundred  and  tw^enty  was  exhausted. 
After  much  debate  and  strong  opposition,  this  bill 
passed  both  houses  of  Congress  ;  but  the  correct 
and  independent  mind  of  President  Washingtou 
could  not  reconcile  its  provisions  with  the  Con- 
stitution, and  he  returned  the  bill  to  the  House 
of  Eepresentatives,  in  which  it  had  originated, 
with  this  objection,  "that  the  Constitution  had 
provided  that  the  number  of  representatives 
should  not  exceed  one  for  every  thirty  thousand, 
which  ra£io  was  to  be  applied  to  the  respective 


70  LECTURES    ON 

numbers  of  the  states ;  whereas  the  bill  allotted 
to  several  of  the  states  more  than  one  represent- 
ative for  every  thirty  thousand  of  its  popula- 
tion." As  there  was  not  a  constitutional  major- 
ity to  pass  the  bill  notwithstanding  the  objec- 
tion, it  was  subsequently  rejected,  and  a  new 
one  immediately  brought  in  and  passed,  adopt- 
ing the  raiio  of  thirty-three  thousand,  and  apply- 
ing it  to  the  numbers  of  the  states  respectively, 
without  providing  for  the  representation  of  the 
fractional  parts.  This  course  has  been  pursued 
on  every  subsequent  occasion;  although,  on  the 
return  of  the  fifth  census,  a  proposal  for  the  rep- 
resentation of  the  fractional  parts,  similar  irk 
principle  to  the  former,  was  made  and  adopted 
in  the  Senate,  but  rejected  in  the  House  of  Rep- 
resentatives. In  this  case,  indeed,  the  ratio  adopt- 
ed exceeded  thirty  thousand,  and  was  fixed  by 
the  amendment  of  the  Senate  at  forty-seven  thou- 
sand seven  hundred  ;  but  this  ratiOy  as  before, 
was  applied  to  the  aggregate  number  of  the 
whole  representative  population,  in  order  to  ob- 
tain the  number  of  representatives,  who  were 
then,  in  like  manner,  apportioned  among  the 
several  states,  and  the  residuary  members  dis- 
tributed among  those  having  the  highest  frac- 
tional numbers  exceeding  twenty-five  thousand. 
In  this  respect,  therefore,  the  amendment  in 
question  was  liable  to  the  objection  of  assigning 
a  representative  to  a  less  number  than  thirty 
thousand.  But  had  it  even  assigned  the  surplus 
to  the  states  having  fractions  equal  to  or  exceed- 
ing that  number,  it  would  still  have  contravened 
the  provision  of  the  Constitution  which  directs 
the  ratio  to  be  applied  to  the  representative  num- 
bers of  the  several  states   without  in  any  man- 


CONSTITUTIONAL    JURISPRUDENCE.  71 

ner  noticing  the  fractional  parts  resulting  from 
the  apportionment,  or  contemplating  any  other 
computation  than  the  one  expressly  directed. 

To  guard  against  a  refractory  disposition, 
should  it  ever  appear  in  any  of  the  sister  states, 
in  the  neglect  or  refusal  to  exercise  the  right 
vested  in  them  by  the  Constitution,  of  prescri- 
bing the  time,  places,  and  manner  of  holding  elec- 
tions of  representatives,  Congress  is  empowered, 
at  any  time,  to  make  or  alter  such  regulations  3 
and  this  power  was,  for  the  first  time,  partially 
exercised  by  the  present  Congress.  The  act 
referred  to  directs  the  state  legislatures  to  di- 
vide their  respective  states  into  as  many  dis- 
tricts, for  the  election  of  their  representatives  in 
Congress,  as  there  are  representatives  to  be  elect- 
ed in  each  ;  and  requiring  that  each  district  shall 
consist  of  contiguous  territory,  and  contain  an 
equal  number  of  persons,  as  nearly  as  may  be, 
without  dividing  counties,  or  other  similar  subdi- 
visions. Several  of  those  states  in  which  the 
principles  of  anti-federalism  and  nullification  pre- 
vail, demurred  in  carrying  this  regulation  into  ef- 
fect, and  at  last  yielded  only  a  reluctant  consent ; 
and  the  State  of  Missouri  still  holds  out  against 
a  provision,  of  which  the  expediency  is  as  un- 
doubted elsewhere  as  its  constitutionality.  By 
the  act  apportioning  the  representatives  among 
the  several  states  according  to  the  last  census, 
the  ratio  of  seventy-four  thousand  for  a  repre- 
sentative was  adopted,  which  gives  a  total  num- 
ber of  two  hundred  and  twenty-three  members 
in  the  next  House  of  Representatives. 

The  House  of  Representatives  possesses  the 
sole  power  of  impeachment,  or  of  presenting  ac- 
cusations *igainst  public  officers  of  the  United 


72  LECTURES    ON 

States  for  malversation  in  their  offices.  It  has 
also  the  exclusive  right  of  originating  all  bills 
for  raising  revenue  j  and  this  is  the  only  privi- 
lege which  that  house  possesses,  in  its  legisla- 
tive character,  which  is  not  equally  shared  with 
the  other ;  and  even  these  revenue  bills  are  amend- 
able by  the  Senate  at  its  discretion  :  so  tluii, 
in  all  business  appertaining  to  legislation,  each 
house  is  an  entire  and  perfect  check  upon  tiie 
other.  The  proceedings  in  the  House  of  Eepre- 
seniatives  are  conducted  with  open  doors,  ex- 
cept on  very  special  occasions.  This  publicity 
affords  the  people  early  and  authentic  informa- 
tion of  the  progress,  reason,  and  policy  of  meas- 
ures pending  befoie  Congress,  and  is,  moreover, 
a  powerful  stimulus  to  industry  and  research, 
and  to  the  cultivation  of  talent  and  eloquence  in 
debate.  These  advantages,  indeed,  may  be  ac- 
quired at  the  expense  of  much  useless  discussion 
and  much  valuable  time,  yet  the  balance  of  util- 
ity is  greatly  in  favour  of  open  deliberation  ;  and 
it  is  very  certain,  from  the  opposition  made  to 
the  experiment  of  the  first  Senate  to  sit  with 
closed  doors,  that  such  a  practice  by  any  legis- 
lative body  in  this  country  would  not  be  endured. 
If.  The  Senate  of  the  United  States  consists 
of  two  senators  from  each  state,  chosen  by  its 
Legislature  for  six  years,  and  each  senator  has 
one  vote.  If  a  vacancy  happen  during  a  recess 
of  the  Legislature,  the  executive  power  of  the 
state  may  make  temporary  appointments  until 
the  next  meeting  of  the  Legislature,  when  the 
vacancy  must  be  filled  in  the  ordinary  manner. 
Each  state,  therefore,  has  its  equal  voice  and 
weight  in  the  Senate  of  the  Union,  without  re- 
gard to  disparity  of  population,  wealth,  or  terri 


CONSTITUTIONAL    JURISPRUDENCE.  73 

tory.  The  number  of  two  senators  from  each 
state  would,  however,  have  been  found  inconve- 
nient, if  the  votes  in  the  Senate  had  been  taken, 
as  in  the  old  Congress,  by  states.  There,  if  the 
delegates  from  a  state  were  divided,  its  vote  was 
lost,  and  this,  of  course,  rendered  an  uneven 
number  preferable.  But  from  the  numerical  vote 
taken  upon  all  questions  in  the  Senate,  a  division 
of  opinion  between  the  senators  of  a  particular 
state  has  no  influence  on  the  general  result. 

The  election  of  senators  in  Congress  by  the 
state  legislatures  has  the  double  advantaofe  of 
favouring  a  select  appointment,  and  of  giving  to 
the  state  governments  such  an  essential  agency 
in  the  formation  of  the  General  Government  as 
recognises  and  preserves  their  separate  and  in- 
dependent existence,  and  renders  them,  in  their 
sovereign  character,  living  and  active  members 
of  the  federal  body.  Whether  the  choice  of 
senator  should  be  made  by  the  joint  or  concur- 
rent vote  of  the  two  branches  of  the  state  legis- 
latures, the  Constitution  does  not  direct.  Diffi- 
culties have  hence  arisen  as  to  its  meaning. 
The  legislatures  are  not  only  to  elect  the  mem- 
bers of  this  branch  of  the  National  Congress, 
but  to  prescribe  the  times,  places,  and  manner 
of  holding  the  election,  and  Congress  is  author- 
ized to  alter  such  regulations,  except  as  to  the 
place.  The  difference  between  the  two  modes 
of  election  is,  that  on  a  joint  vote,  the  members 
of  both  branches  of  the  Legislature  assemble  to- 
gether for  the  purpose,  and  vote  niimericaUy ; 
while  a  concurrent  vote  is  taken  by  each  house 
separately,  and  the  decision  of  one  is  subject  to 
the  approval  of  the  other  The  difficulties  allu- 
ded to    have  arisen   in  cases  of  their  disaorr  e- 


74  LECTURES    ON 

ment ;  but  as  the  legislatures  may  prescribe  the 
manner  of  choosing  senators,  it  has  been  consid- 
ered and  settled,  in  the  State  of  New- York  and 
several  other  states,  that  the  Legislature  may 
direct  them  to  be  chosen  by  the  joint  vote,  or 
ballot,  of  both  houses,  in  cases  of  non-concur- 
rence ;  and  then,  of  course,  the  weight  of  the 
least  numerous  branch  is  dissipated  and  over- 
come by  the  heavier  vote  of  the  other.  This 
construction  has  been  found  the  most  conveni- 
ent, and  has  been  too  long  settled,  by  the  recog- 
nition of  senators  so  elected,  to  be  now  disturb- 
ed ;  but  were  the  question  an  open  one,  I  think 
it  might  be  maintained  that,  when  the  Constitu- 
tion directed  the  federal  senators  to  be  chosen 
in  each  state  ''  by  the  Legislature  thereof,"  it 
meant  the  Legislature  in  the  true  technical  sense 
of  the  term,  consisting  of  two  branches,  acting 
in  their  separate  and  organized  'capacities,  Avith 
the  ordinary  constitutional  negative  on  each  oth- 
er's proceedings,  and  not  the  members  of  the  two 
houses  per  capita. 

The  smaller  number  and  longer  duration  of 
the  Senate  were  intended  to  render  it  a  safe- 
guard against  those  paroxysms  of  heat  and  pas- 
sion which  prevail  occasionally  in  more  popular 
assemblies.  The  characteristic  qualities  of  the 
Senate,  in  the  intendment  of  the  Constitution, 
are  wisdom  and  experience.  The  legal  pre- 
sumption, therefore,  is,  that  it  will  entertain  more 
enlarged  views  of  public  policy,  and  feel  a  high- 
er and  juster  sense  of  national  character,  and  a 
greater  regard  for  stability  and  permanence  in 
the  administration  of  the  government,  than  a  more 
numerous  and  changeable  body.  These  qualities, 
indeed,  may  be  found,  too,  in  the  other  branch 


CONSTITUTIONAL   JURISPRUDENCE.  7Jo 

of  the  Legislature,  but  its  constitutional  struc- 
ture is  not  so  well  calculated  to  produce  them  j 
for  as  the  House  of  Representatives  comes  more 
immediately  from  the  people,  and  its  members 
hold  their  seats  for  a  much  shorter  term,  they 
are  presumed  to  partake,  with  a  quicker  sensi- 
bility, of  the  prevailing  temper  and  irritable  dis- 
position of  the  times,  and  to  be  in  much  more 
danger  of  adopting  measures  with  precipitancy 
and  changing  them  with  levity,  than  the  more 
sage  and  experienced  members  of  the  more  select 
and  less  numerous  body.  In  order,  therefore, 
to  counteract  these  propensities,  to  maintain  a 
greater  confidence  in  the  government,  and  to  en- 
sure its  safety  at  home  and  its  character  abroad, 
it  was  necessary  that  another  body  of  men,  com- 
ing likewise,  though  mediately,  from  the  people, 
and  equally  responsible  to  them  for  their  con- 
duct, but  resting  on  a  more  permanent  basis, 
and  constituted  with  stronger  inducements  to 
moderation  in  debate  and  tenacity  of  purpose, 
should  be  placed  as  a  check  upon  the  natural  in- 
temperance of  the  younger  and  more  popular 
branch.  W 

The  Senate,  at  its  first  organization,  was  divi- 
ded, in  the  mode  pointed  out  in  the  Constitution, 
into  three  classes.  The  rotation  intended  by 
that  division  was  originally  determined  by  lot, 
and  the  seats  of  one  of  the  classes  became  va- 
cant at  the  expiration  of  every  second  year;  so 
that  one  third  of  the  Senate  is  regularly  chosen 
every  two  years.  This  provision  was  borrowed 
from  some  of  the  state  constitutions,  of  which 
that  of  Virginia  gave  the  first  example  ;  and  it 
is  admirably  well  calculated,  on  the  one  hand,  to 
infuse  into  the  Senate  renewed  confidence  and 


76  LECTURES    ON 

vigour,  and,  on  the  other,  to  retain  a  large  por- 
tion of  experienced  members,  duly  initiated  into 
the  general  principles  of  national  policy,  and  the 
forms  and  course  of  legislative  business. 

The  Senate  has  the  sole  power  of  trying  im- 
peachments. The  first  recognition  of  a  court 
for  that  purpose  is  in  the  article  of  the  Constitu- 
tion we  are  now  examining,  which  declares  that 
"the  House  of  Representatives  shall  have  the  sole 
power  of  impeachment,"  and  that  "  the  Senate 
shall  have  the  sole  power  to  try  all  impeachments." 
The  term  is  thus  introduced  as  of  a  known 
and  definite  signification  ;  and  a  well-constituted 
court  for  the  trials  of  impeachments  was  consid- 
ered by  the  authors  of  *'  The  Federalist"  as  an 
object  not  more  to  be  desired  than  difficult  to  be 
obtained,  in  a  government  wholly  elective.  The 
delicacy  and  magnitude  of  a  trust  which  so  deep- 
ly concerns  the  political  reputation  and  exist- 
ence of  every  one  engaged  in  the  administration 
of  public  affairs,  may  be  readily  perceived  ;  as 
will  also  the  difficulty  of  placing  it  rightly  in  a 
government  in  which  the  most  conspicuous  per- 
sons are  the  leaders,  and  too  often  the  instru- 
ments of  party,  and  can,  therefore,  hardly  be  ex- 
pected to  possess  the  neutrality  requisite  in  re- 
gard to  those  whose  conduct  may  be  submitted 
to  their  scrutiny.  It  would  be  improper,  too,  to 
commit  the  cognizance  of  those  ofl^ences  which 
are  the  objects  of  an  impeachment  to  the  ordina- 
ry courts  of  justice,  as  the  complexities  and  va- 
riety of  political  delinquencies  are  too  numerous 
and  artful  to  be  anticipated  by  positive  enact- 
ments, and  sometimes  too  subtile  and  mysteriou? 
to  be  fully  detected  and  exposed,  in  the  limited 
period  of  ordinary  investigation.     A  peculiar  tri- 


CONSTITUTIONAL    JURISPRUDENCE.  77 

bunal  seems,  thereiore,  useful  and  necessary ; 
an  institution  of  a  liberal  and  comprehensive 
character;  conhned  as  little  as  possible  to  strict 
forms  j  enabled  to  continue  its  sessions  as  long 
as  the  nature  of  the  case  before  it  may  require  j 
qualified  to  view  the  charge  in  all  its  bearings  and 
dependances,  and  to  appreciate,  on  sound  princi- 
ples of  public  policy,  the  defence  of  the  accused. 
To  compose  this  court  of  persons  wholly  dis- 
tinct from  the  other  branches  of  the  government, 
and  forming  a  permanent  body  for  the  single 
purpose  of  exercising  this  jurisdiction,  would 
have  been  as  inconvenient  as  to  appoint  and  col- 
lect temporary  judges  whenever  an  impeachment 
may  be  determined  on.  The  Convention  who 
formed  the  Constitution  thought  it  most  fit  and 
safe  to  make  the  Senate  the  depositary  of  this 
important  trust ;  and,  upon  a  review  of  all  the 
departments  of  the  government,  no  other  could 
have  been  found  so  suitable  for  the  exercise  of 
this  important  jurisdiction.  The  model  from 
which  this  institution  was  borrowed  was  the 
British  House  of  Peers,  and  it  had  been  previ- 
ously adopted  in  several  of  the  state  constitu- 
.  tions.  Besides  the  reasons  already  suggested 
against  vesting  it  in  the  ordinary  courts,  there 
remains  this  farther  consideration,  that  the  pun- 
ishment consequent  upon  conviction  is  not  the 
only  one  to  which  the  offence  is  liable.  The 
judgment,  in  cases  of  impeachment,  extends  no 
farther  than  removal  from  office,  and  disqualifi- 
cation to  hold  in  future  any  office  of  trust  or 
profit  under  the  United  States.  But  the  party 
convicted  is,  nevertheless,  subject  to  prosecu- 
tion according  to  the  usual  course  of  administer- 
ing the  law;  and  it  would  be  obviously  i>nprop- 


78  LECTURES    ON 

er,  if  not  in  a  high  degree  dangerous,  that  the 
same  tribunal  who  had  already  disposed  of  the 
fame  and  character  of  the  accused,  and  of  his 
most  valuable  political  rights  as  a  citizen,  should, 
in  another  trial  for  the  same  offence,  be  also  the 
arbiter  of  his  life,  liberty,  or  property. 

The  only  persons  liable  to  impeachment  with 
us  are  those,  we  have  seen,  who  are,  or  have  been, 
in  public  office.  But  a  construction  has  been  giv- 
en to  the  Constitution,  by  which  a  member  of  the 
Senate  was  held  not  to  be  liable  to  impeachment. 
The  deliberations  of  the  court  being  held  in  se- 
cret, we  can  only  infer  from  the  arguments  urged 
at  the  bar,  that  the  term  "  officers"  used  in  the 
Constitution  was  held  not  to  include  senators; 
and  on  the  same  principle,  members  of  the  House 
of  Representatives  would  also  be  exempt  from 
liabilitj^  to  this  jurisdiction.  The  grounds  of  the 
distinction  may  probably  have  been  that  the 
power  of  impeachment  was  considered  merely 
as  a  check  given  to  the  Legislature  upon  the 
other  two  departments,  and  that,  as  each  house 
of  Congress  was  the  judge  of  its  own  members, 
all  the  ends  of  punishment  might  be  attained  by 
expelling  a  delinquent  member. 

When  sitting  as  a  court  for  the  trial  of  im- 
peachments, the  senators  are  put  under  oath  or 
affirmation  faithfully  and  impartially  to  discharge 
their  judicial  functions.  No  person  can  be  con- 
victed but  v/ith  the  concurrence  of  two  thirds  of 
the  members  of  the  court  ;  the  Vice-president  of 
tlie  United  States,  as  President  of  the  Senate, 
being  a  member  of  the  court ^  with  a  constant  in- 
stead of  a  contingent  vote,  presides  in  it,  excep; 
uhen  the  President  of  the  United  Slates  is  tried  j 
:)])  which  occasion  tb«  s'Hief-justice  presides. 


CONSTITUTIONAL    JURISPRUDENCE.  79 

The  Senate,  moreover,  in  its  exclusive  con- 
nexion with  the  executive  department,  has  a  neg- 
ative upon  the  appointment  of  all  officers  of  the 
United  States  whose  appointment  is  not  other- 
wise provici^d  for  in  the  Constitution;  and  the 
advice  and  consent  of  two  thirds  of  the  senators 
present  are  requisite  to  all  treaties  which  are  sub- 
mitted by  the  consideration  of  the  Senate  alone. 
The  Senate,  however,  is  not  consulted  in  the  first 
instance  ;  but  when  a  treaty  is  agreed  on  by  the 
agents  employed  for  its  negotiation,  the  Presi- 
dent, unless  he  disapprove  it,  submits  it  to  the 
Senate,  and  renders  to  them  from  time  to  time 
such  information  relative  to  it  as  they  may  re- 
quire. The  Senate  may  wholly  reject  a  treaty, 
or  they  may  ratify  it  in  part,  or  recommend  ad- 
ditional or  explanatory  articles,  which,  if  the  Pres- 
ident approve,  again  become  the  subject  of  ne- 
gotiation with  the  foreign  power ;  when  the 
whole  receives  the  sanction  of  the  Senate,  the 
ratifications  are  exchanged,  and  the  treaty  be- 
comes obligatory  upon  both  nations.  Although 
not  expressly  required  by  the  Constitution,  yet, 
from  the  fitness  and  exigency  of  the  case,  the 
proceedings  of  the  Senate  on  these  occasions  are 
always  with  closed  doors  ;  and  the  contents  of 
the  treaty,  and  the  information  connected  with 
it,  are,  from  motives  of  delicacy  and  good  policy, 
kept  secret  until  the  publication,  or  other  termi- 
nation of  the  negotiations  in  regard  to  it,  render 
such  reserve  no  longer  necessary.  From  the  su- 
perior weight  and  delicacy  of  the  trusts  thus  con- 
fided to  the  Senate,  the  Constitution  requires  that 
a  senator  should  be  thirty  years  of  age,  nine  years 
a  citizen,  and,  at  the  time  of  his  election,  an  in- 
habitant of  the  state  for  which  he  is  chosen. 


60  LECTURES    ON 

The  Constitution  directs  that  Congress  shall 
assemble  at  least  once  in  every  year,  and  that 
such  meeting  shall  be  on  the  first  Monday  in  De- 
cember, unless  another  day  be  appointed  by  law. 
So  that,  until  the  time  fixed,  either  bj^  the  Consri- 
tuiion  or  the  law,  the  action  of  Congress  cannot 
commence,  unless  the  President,  in  the  exercise 
of  his  constitutional  power,  shall,  on  an  extraor- 
dinary occasion,  think  proper  to  convene  them 
*ooner.  Congress  also,  by  a  concurrent  resolu- 
tion, to  which,  in  this  case,  the  assent  of  the 
President  is  not  required,  fixes  the  time  of  its 
own  adjournments.  But  during  a  session  neither 
house,  without  the  consent  of  the  other,  can  ad- 
journ for  more  than  three  days,  nor  to  any  oth- 
er place  than  that  in  which  it  is  sitting. 

Although  Congress  may  be  convened  by  the 
President,  and  in  cases  of  disagreement  between 
the  two  houses  as  to  the  time  of  their  adjourn- 
ment, he  may  adjourn  them  to  such  time  as  he 
may  think  proper,  yet  our  National  Legislature 
possesses  this  great  advantage  over  all  others, 
which  may  in  all  cases  be  adjourned  or  dissolv- 
ed at  the  pleasure  of  the  executive  authority, 
that  if,  in  the  opinion  of  Congress  itself,  the  pub- 
lic good  may  require  it,  they  may  continue  un 
interruptedly  in  session  until  the  expiration  of 
the  term  for  which  the  House  of  Representatives 
48  elected  ;  and  it  may  appoint  as  early  a  day  an 
it  thinks  proper  for  the  meeting  of  the  next  Con- 
gress. And  among  the  benefits  of  our  written 
Constitution,  it  may  be  accounted  as  one  of  the 
most  valuable,  that  no  act  of  Congress  can  pro- 
long its  own  existence  beyond  the  time  fixed  by 
that  fundamental  law. 


CONSTITUTIONAL    JURISPRUDENCE.  81 

LECTURE  IV. 

OF    THE    EXECUTIVE    POWER. 

L\  the  construction  of  a  Republican  government, 
there  is  no  point  more  difficult  of  adjustment  than  the 
proper  constitution  of  the  executive  power.  The  ob- 
ject of  this  department  being  the  execution  of  the 
laws,  good  policy  requires  that  it  should  be  organi- 
zed in  the  mode  best  calculated  to  effect  that  end 
with  precision  and  fidelity.  In  the  proceedings  of 
the  other  branches  of  the  government,  deliberation  is 
necessary.  Both  in  making  and  expounding  the 
laws,  caution  and  consultation  are  implied  as  indis- 
pensable duties.  But  when  laws  are  duly  made  and 
promulgat^.d,  they  only  remain  to  be  executed.  No 
discretion  is  vested  in  the  executive  officer  in  regard 
to  their  wisdom  and  expediency.  What  has  been 
declared^  under  the  forms  of  deliberation  prescribed 
by  the  Constitution,  to  be  the  meaning  and  intention 
of  the  Legislature,  should  be  carried  into  prompt  ex- 
ecution, and  due  effect  given  to  it  by  the  executive 
department,  until  repealed  by  the  legislative  power, 
or  pronounced  unconstitutional  by  the  judiciary,  in 
which  latter  case,  the  act  of  the  Legislature  is  ascer- 
tained to  be  void,  and  neither  public  officers  nor  pri- 
vate citizens  are  responsible  for  its  neglect  or  viola- 
tion . 

But  every  individual  is  bound  to  obey  a  constitu- 
tional law,  however  objectionable  in  other  respects 
it  may  appear  to  him  ;  and  whosoever  refuses  or 
withholds  obedience  to  a  law  on  the  ground  even  of 
Its  unconstitutionality,  does  so  at  his  peril ;  for  if  the 
question  be  judicially  decided,  by  a  competent  tribu- 
nal, in  favour  of  its  validity,  he  is  liable  to  all  the  le- 
G 


82  LECTURES    ON 

gal  consequences  of  disobedience.  The  presiimp* 
tion,  moreover,  is  always  in  favour  of  a  law^  passed 
according  to  the  forms  of  the  Constitution  ;  and  where 
the  chief  executive  magistrate  has  a  negative  upon 
the  acts  of  the  Legislature,  that  presumption  is,  of 
course,  the  stronger  against  him,  especially  as  tc 
laws  passed  under  his  own  administration,  and  which 
must,  therefore,  have  received  his  official  approval. 
For  in  such  a  case,  the  existence  alone  of  the  law 
is  evidence  of  his  admission  of  its  constitutionality 
if  the  negative  he  possesses  be  absolute ;  and,  if 
qualified,  it  shows  that  his  objections  were  overruled, 
and  the  law  subsequently  passed  on  a  reconsidera- 
tion, as  required  on  such  occasions  by  the  Constitu- 
tion. If  the  law  to  which  he  objects  were  passed 
under  a  former  administration,  his  official,  if  not 
his  personal  obligation,  is  not  less  absolute  and  per- 
emptory. For  the  negative  vested  in  him  is  a  legis- 
lative, and  not  a  judicial  power,  and  to  allow  a  con- 
trary doctrine  would  be  to  admit  the  existence  of  a 
right  in  the  executive  department  to  repeal  laws  with- 
out the  intervention  of  the  Legislature.  As,  therefore, 
the  executive  power  is  not  only  bound  to  obey,  but 
to  carry  into  effect  the  law,  the  essential  qualities  re- 
quired in  that  department  are  promptness,  vigour, 
and  responsibility. 

A  prompt  submission  to  the  law,  and  an  immediate 
preparation  to  enforce  it,  are  absolutely  necessary  in 
respect  to  the  authority  from  which  it  emanates.  In 
regard  also  to  its  effect — whenever  the  time  of  acting 
on  a  law  has  arrived,  its  operation  should  be  imme- 
diate and  decisive,  otherwise  the  sense  of  its  protec- 
tion and  control  will  be  weakened,  and  its  powei 
unfelt  and  forgotten.  On  general  principles,  there- 
fore, as  delay  is  reprehensible,  promptness  is  a  duty, 
the  non-performance  of  which,  in  certain  cases,  ena- 


CONSTITUTIONAL   JURISPRUDENCE.  83 

tt2i>^  Ji<5  iransgresiior  to  escape  punishment.  Fot 
ttiis  veason,  it  is  both  wise  and  humane  that  the  ex- 
ecution 01  tne  law  should  be  speedy,  and  that  no  un- 
necessary interval  should  oe  allowed  between  its 
idolaiion  and  ihe  adoption  of  measures  to  enforce  ii. 

For  this  purpose,  the  executive  magistrate  should 
be  endowed  witn  sufhcient  energy.  A  feeble  execu- 
tive department  implies  a  leeblc  execution  of  the 
government,  which  is  but  another  name  for  a  bad  ex- 
ecution ;  and  a  government  in  which  the  laws  are 
not  faithfully  executed,  whatever  it  m>ay  be  in  theory, 
must  in  practice  be  a  bad  one.  A  vigour  of  action 
duly  proportioned  to  the  exigencies  which  arise 
must  be  imparted  to  the  executive  power.  But  for 
this  purpose,  the  proportion  of  power  vested  to  the 
occasions  that  may  be  expected  to  require  its  exer- 
cise should  be  as  exact  as  possible ;  for  if  the 
power  fall  short,  the  evils  already  adverted  to  will  en- 
sue ;  and  if  it  exceed  its  true  proportion,  the  liberties 
of  the  people  would  be  endangered.  It  is  difficult, 
however,  in  a  written  Constitution,  to  adopt  general 
expressions  precisely  descriptive  of  the  proper  ex- 
tent and  limitation  of  this  power.  To  guard,  there- 
fore, against  its  abuse,  as  well  as  to  ensure  a  faithful 
execution  of  the  general  trust  reposed  in  this  de- 
partment, it  is  requisite  that  it  should  be  held  respon- 
sible to  the  people  for  official  delinquencies. 

These  three  qualities  of  promptness,  vigour,  and 
rcsponsihility  are  certainly  most  likely  to  exist  where 
the  executive  authority  is  limited  to  a  single  person, 
moving  at  the  discretion  of  a  single  will.  In  some 
republics,  the  fear  of  danger  from  such  a  head  has 
led  to  the  introduction  of  councils,  and  other  subdi- 
visions of  the  executive  power,  and  the  consequent 
imbecility  and  distractions  of  those  governments 
have  probably  contributed  to  the  preference  given  in 


84  LECTURES    ON 

Europe  to  monarchies.  It  was  falsely  conceived 
that  to  vest  the  executive  power  in  a  single  person 
was  inconsistent  with  the  nature  and  genius  of  a  re- 
public, or  that  a  republic  thus  constituted  could  long 
maintain  its  freedom  against  the  ambitious  views  of 
a  single  chief.  But  during  the  American  Revolu- 
lion,  neither  the  fervour  of  Republican  principles, 
nor  resentment  towards  the  monarchy  then  arrayed 
against  us,  overpowered  the  deliberate  judgments  ol 
our  statesmen,  and,  upon  the  establishment  of  inde- 
pendent governments,  almost  all  the  states  adopted 
the  principle  of  unity  in  the  executive  power.  The 
experience  of  more  than  half  a  century  has  evinced 
that,  under  proper  limitations,  no  abuse  of  the  power 
is  to  be  apprehended  merely  from  its  unity,  while 
every  government,  ancient  and  modern,  constituted 
upon  the  scheme  of  a  compound  executive  authority, 
has  suffered  from  the  evils  of  division,  indecision, 
and  delay,  while  the  public  interests  have  been  sac- 
rificed, or  have  languished  under  a  feeble  and  irregu- 
lar management.  In  those  states  of  our  Union  where 
executive  councils  have  been  tried,  this  weakness 
and  inefficiency  have  been  strikingly  exemplified. 
In  most  instances  in  which  they  were  at  first  adopt* 
ed,  they  were  speedily  abandoned,  and  a  single  per- 
son substituted,  in  accordance  with  the  lights  afforded 
to  the  states  in  question  by  their  own  experience,  or 
the  institutions  of  their  neighbours. 

Unity  not  only  increases  that  efficiency  which  is 
necessary  to  preserve  tranquillity  at  home  and  com- 
mand respect  abroad,  but  it  is  requisite  to  secure  the 
responsibility  of  the  executive  power.  Where  there 
is  but  one  agent,  every  act  can  be  traced  and  brought 
home  to  him  ;  nor  can  there  be  any  concealment  of 
the  real  author,  and  generally  none  of  the  true  mo- 
tives of  public  measures,  where  there  are  no  associ* 


CONSTITlrnONAL    JURISPRUDENCE.  85 

ates  to  divide  or  mask  responsibility.  The  eyes  ot 
the  people  will  be  constantly  directed  to  a  single 
conspicuous  object,  and  for  these  reasons,  De  Lolme 
considers  it  a  sound  maxim  of  policy,  that  the  ex- 
ecutive power  is  more  easily  confined  where  it  is 
one  and  indivisible.  "  If  the  execution  of  the  laws," 
he  observes,  "  be  intrusted  to  a  number  of  hands,  the 
true  cause  of  public  evils  is  hidden.  Tyranny  in 
such  states  does  not  always  beat  down  the  fences 
that  are  set  around  them,  but  it  leaps  over  them.  It 
mocks  the  efforts  of  the  people,  not  because  it  is  in- 
vincible, but  because  it  is  unknown." 

In  accordance  with  these  principles,  the  Federal 
Constitution  vests  the  executive  power  in  a  single 
person,  who  is  styled  *'  The  President  of  the  Uni- 
ted States  ;"  the  qualifications  and  election,  the 
powers  and  duties  of  which  high  officer  will  now  be 
the  subject  of  consideration. 

I.  The  Constitution  requires  that  the  President 
should  be  a  natural-born  citizen  of  the  United  States 
at  the  time  of  its  adoption  ;  have  attained  the  age  of 
thirty-five  years,  and  have  been  fourteen  years  a  resi- 
dent within  them.  Considering  the  magnitude  of  the 
trust,  and  that  the  executive  department  is  the  ulti- 
mately efficient  power  in  the  government,  these  re- 
strictions will  not  appear  useless  nor  unimportant. 
The  qualification  required  of  citizenship  was  intend- 
ed to  prevent  ambitious  foreigners  from  intriguing 
ibr  the  office,  and  to  cut  off  all  those  inducements 
from  abroad  to  corruption,  intervention,  and  war, 
which  have  frequently  and  fatally  harassed  the  elect- 
ive monarchies  of  Europe.  The  age  required  in 
the  President  is  suflicient  to  have  formed  his  public 
and  private  character,  and  the  previous  term  of  do- 
mestic residence  is  intended  to  afford  his  fellow-citi 
zens  the  opportunity  of  gainino-  a  correct  knowledge 


86  LECTURES    ON 

of  his  principles  and  capacity,  and  to  enable  him  to 
acquire  habits  of  attachment  and  obedience  to  the 
laws,  and  of  practical  devotion  to  the  public  welfare. 

The  mode  of  his  appointm.ent  presented  one  of 
the  most  difficult  questions  that  occupied  the  Con- 
vention ;  and  if  ever  the  tranquillity  of  this  nation  is 
to  be  disturbed,  and  its  peace  jeoparded,  by  a  strug- 
gle for  power  among  ourselves,  it  is  the  opinion  of 
some  of  our  wisest  statesmen  that  it  will  be  on  this 
very  subject  of  the  choice  of  President.  It  is  there- 
fore the  more  remarkable,  that  this  was  almost  the 
only  part  of  the  federal  system,  of  any  importance, 
which  escaped  without  the  severest  censure,  or  re- 
ceived the  slightest  mark  of  approbation  from  its  oppo- 
nents. By  the  authors  of  "  The  Federalist,"  the  man- 
ner of  choosing  the  President  was  affirmed  to  be, 
"  if  not  perfect,  at  least  excellent,"  and  to  unite,  in 
an  eminent  degree,  all  the  advantages  of  which  the 
selection  and  association  were  to  be  desired.  It  is, 
nevertheless,  considered  by  Mr.  Chancellor  Kent  as 
"  the  question  which  is  to  try  the  strength  of  the 
Constitution  ;"  and  that,  "  if  we  are  able,  for  half  a 
century  hereafter,  to  continue  to  elect  the  chief  ma- 
gistrate of  the  Union,  with  discretion,  moderation, 
and  integrity,  we  shall  undoubtedly  stamp  the  high- 
est value  on  our  national  character,  and  recommend 
our  Republican  institutions,  if  not  to  the  imitation,  yet 
certainly  to  the  esteem  and  admiration  of  the  more 
enlightened  part  of  mankind." 

The  experience  of  ancient  and  modern  Europe 
has  certainly,  as  this  eminent  jurist  observes,  been 
unfavourable  to  the  practicability  of  the  fair  and 
peaceable  election  of  the  executive  of  a  great  nation. 
It  was  found  impossible  to  guard  such  elections  from 
the  mischiefs  of  foreign  intrigue  and  domestic  turbu- 
lence, from  violence  or  corruption  ;  and  men  have 


CONSTITUTIONAL    JURISPRUDENCE.  87 

generally  sought  refuge  from  the  dangers  of  popular 
elections  in  hereditary  chief  magistrates,  as  the  lesser 
evil  of  the  two.  Archdeacon  Paley  condemns  all 
elective  monarchies,  and  thinks  nothing  gained  by  a 
popular  choice  w^orth  the  dissensions,  tumults,  and 
interruptions  of  regular  industry  with  which  it  is  in- 
separably connected.  But  these  consequences  rare- 
ly attend  our  elections,  and  no  such  evils  as  he  de- 
scribes have  ever  been  experienced  in  our  elections 
of  a  President  by  the  electors  ;  although  on  one  mem- 
orable occasion,  of  which  I  shall  speak  hereafter, 
much  riotous  and  violent  conduct  was  exhibited  in 
the  House  of  Representatives,  when,  upon  an  equali- 
ty of  electoral  votes  between  Mr.  Jefferson  and  Colo- 
nel Burr,  in  ISOl,  the  choice  between  them  devolved 
on"  that  body.  Nor  can  any  serious  danger  be  appre- 
hended in  future  from  such  occurrences,  when  we 
reflect  on  the  nature  of  the  precautions  which  have 
been  so  happily  concerted  to  prevent  them — in  the 
manner  of  electing  the  President,  and  the  limitations 
in  the  nature,  extent,  and  duration  of  his  power.  The 
question,  too,  with  us,  was  very  different  from  the 
wisdom  01  policy  of  preferring  hereditary  to  elective 
monarchies  in  Europe  ;  where  the  same  restraints 
on  the  executive  authority  do  not  exist  to  diminish 
its  value  in  the  estimation  of  competitors — where 
different  orders  and  ranks  are  established  in  the  com- 
munity, and  large  masses  of  property  are  accumula- 
ted in  the  hands  ol  individuals — where  ignorance  and 
poverty  are  widely  diffused,  and  standing  armies  are 
requisite  to  preserve  the  stability  of  the  government. 
The  state  of  society  and  property  in  this  country, 
and  the  moral  and  political  habits  of  the  people,  have 
enabled  us  to  adopt  the  Republican  principle  in  rela- 
tion to  the  chief  executive  magistrate,  and  to  main- 
tain it  hitherto  with  signal  success.     From  the  pe- 


88  LECTURES    ON 

cuLar  character  of  our  Federative  Union,  in  whic^ 
the  concerns  only  of  the  nation,  as  such,  are  confided 
to  the  General  Government,  and  those  of  a  local  de- 
scription to  the  states — from  the  nature  of  the  civil 
and  municipal  institutions  of  the  states,  which  favoui 
the  exertions  of  industry  by  the  certainty  of  adequate 
rewards,  and  secure  enjoyment,  but  discourage  and 
prevent  the  accumulation  of  overgrown  estates — from 
the  spread  of  knowledge  and  the  prevalence  of  mo- 
rality and  religious  habits,  we  may  reasonably  hope 
that  the  checks  which  the  Constitution  has  provided 
against  the  dangerous  propensities  of  our  system,  al- 
though sometiaies  contemned  by  ambitious  popular 
leaders,  will  prove  continually  and  ultimately  suc- 
cessful. The  election,  however,  of  a  supreme  ma 
gistrate  for  a  whole  nation,  aflects  so  many  interests, 
addresses  itself  so  strongly  to  popular  passions,  and 
holds  forth  such  powerful  temptations  to  ambition, 
that  even  under  the  most  favourable  circumstances 
and  wisest  regulations,  it  necessarily  becomes  a  for- 
midable trial  to  public  virtue,  and  sometimes  hazard- 
ous to  the  public  tranquillity.  The  framers  of  our 
Constitution,  from  an  enlightened  view  of  all  the  dif- 
ficulties of  the  case,  did  not  think  it  safe  or  prudent 
to  refer  the  election  of  the  President  immediately  to 
the  people,  but  confided  that  power  to  a  small  body 
of  fdectors  appointed  in  each  state,  under  the  direc- 
tion of  the  Legislature  ;  and  in  order  to  close  the 
door  as  eflfectually  as  possible  against  negotiation, 
intrigue,  and  corruption,  they  declared  that  Congress 
might  determine  ihe  day  on  which  the  election  should 
be  held,  and  that  the  day  of  election  should  be  the 
same  in  every  state. 

It  was  essential  that  the  sense  of  the  people  should 
operate  in  the  choice  of  a  person  to  whom  so  im- 
portant a  trust  was  to  be  confided  ;  and  this  end  is 


CONSTITUTIONAL    JURISPRUDENCE.  89 

answered  b;  committing  the  right  of  election,  not  to 
any  pre-established  body,  but  to  men  chosen  by  the 
people  for  the  special  purpose,  and  under  such  cir- 
cumstances as  would  best  ensure  the  freedom  and 
nurity  of  the  election.  It  was  also 'desirable  that  the 
immediate  election  should  be  made  by  men  capable 
of  analyzing  the  qualities  adapted  to  the  station,  and 
acting  under  circumstances  favourable  to  delibera- 
tion, and  to  a  judicious  combination  and  comparison 
of  all  the  reasons  and  inducements  proper  to  govern 
their  choice  ;  and  it  was  fairly  and  reasonably  sup- 
posed that  a  small  number  of  persons,  selected  by 
their  fellow-citizens  from  the  general  mass,  would  be 
most  likely  to  possess  the  information  and  discern- 
ment requisite  to  such  an  investigation.  It  was, 
moreover,  peculiarly  desirable  to  afford  as  little  op- 
portunity as  possible  to  tumult  and  disorder ;  and  it 
was  therefore  considered  that  the  choice  of  several^ 
to  form  an  intermediate  body  of  electors,  would  be 
much  less  apt  to  convulse  the  community  with  any 
extraordinary  or  violent  emotions,  than  the  choice  of 
one,  who  would  himself  be  the  first  object  of  the  pub- 
lic wishes  ;  and  by  requiring  the  electors  chosen  in 
each  state  to  assemble  and  vote  in  the  state  in  which 
they  are  appointed,  it  was  intended  that  they  should 
be  less  exposed  to  heats  and  ferments  communicated 
to  them  from  the  people,  than  if  they  were  all  to  be 
assembled  at  the  same  place. 

Nothing  more  was  to  be  desired,  and  nothing  was 
more  anxiously  attempted,  than  that  every  practica- 
ble  obstacle  should  be  opposed  to  cabal,  intrigue 
and  corruption.  These  deadly  foes  to  Republicanism 
were  naturally  to  be  expected  to  make  their  ap- 
proaches from  more  than  one  quarter ;  but  chiefly 
from  abroad — from  the  desire  of  foreign  powers  tc 
gain  an  improper  ascendency  in  our  public  councils  ; 
H 


90  LECTURES    ON 

and  it  was  apprehended  that  they  might  effect  this 
by  raising  a  creature  of  their  own  to  the  chief  ma- 
gistracy of  the  Union.  The  Convention,  therefore, 
guarded  against  all  danger  of  this  sortwhh  the  most 
provident  and  judicious  attention.  Another,  and  not 
less  important  object  was,  that  the  President  should 
be  independent  for  his  continuance  in  office  on  all 
but  the  people  themselves.  This  object  was  also 
designed  to  be  secured  by  making,  as  we  have  seen, 
his  re-election  depend  upon  a  special  body  of  repre- 
sentatives, deputed  by  the  nation  for  the  single  pur- 
pose of  his  election,  instead  of  permitting  his  contin- 
uance in  office  to  depend  on  the  will  of  Congress  ; 
to  whose  favour  he  might,  in  that  case,  be  tempted 
to  sacrifice  his'  duty  and  official  consequence. 

Such  were  the  advantages  intended  to  be  combi- 
ned and  ensured  by  the  plan  devised  by  the  Conven- 
tion. Whether  they  have  been  altogether  realized, 
we  shall  hereafter  have  occasion  to  inquire  ;  for  the 
present,  it  is  as  well  to  suggest  that  the  contest  which 
arose  in  1801  has  not  been  imitated,  at  least  by  none 
of  equal  violence,  since  the  adoption  of  an  amend- 
ment of  the  Constitution,  intended  to  prevent  such 
violence  for  the  future.  It  has,  nevertheless,  been 
deemed  expedient,  by  some  of  our  ablest  and  most 
experienced  statesmen,  to  propose  a  farther  amend- 
ment, disqualifying  the  President  from  re-election. 

The  Constitution  ordains  that  each  state  shall  a]>- 
point,  in  such  manner  as  its  Legislature  may  direct,  a 
number  of  electors  equal  to  the  whole  number  of  sen- 
ators and  representatives  which  the  state  is  entitled 
to  send  to  Congress  ;  and  to  prevent  the  President 
in  office  at  the  time  of  the  election  from  having  an 
improper  influence  on  his  re-election  by  his  ordina- 
ry agency  in  the  government,  it  is  declared  that  no 
senator  or  representative  in  Congress,  nor  any  per- 


CONSTITUTIONAL     JURISPRUDENCE.  91 

son  holding  an  office  of  trust  or  profit  under  the  Uni- 
ted States,  shall  be  appointed  an  elector.  In  no  oth- 
er respect  has  the  Constitution  defined  the  qualifica- 
tions of  the  electors.  In  several  of  the  states  the 
electors  were  formerly  chosen  by  the  Legislature  it- 
self, in  a  mode  prescribed  by  law,  and  this  method 
still  prevails  in  Delaware  and  South  Carolina.  But 
it  is  to  be  presumed  that  there  will  be  less  opportu- 
nity for  dangerous  coalitions,  for  ambitious,  selfish, 
or  party  purposes,  where  the  choice  of  the  electors 
is  referred,  as,  according  to  the  clear  sense  of  public 
opinion,  it  now  almost  universally  is,  to  the  people 
at  large.  The  electors  are  directed  by  the  Consti- 
tution to  meet  in  their  respective  states  on  the  same 
day  throughout  the  Union,  which,  in  pursuance  of 
.  the  discretionary  power  vested  in  Congress,  has  been 
fixed  by  law  on  the  first  Wednesday  in  December, 
in  every  fourth  year  succeeding  the  last  election. 
The  place  of  meeting  rests  in  the  discretion  of  the 
state  legislatures,  and  is  usually  at  the  seat  of  the 
state  government.  When  thus  assembled,  and  fully 
organized,  by  filling  up  vacancies  occurring  from  the 
death  or  absence  of  any  of  their  number,  the  electors 
proceed  to  vote  by  ballot  for  two  persons,  one  of 
whom,  at  least,  must  not  be  an  inhabitant  of  the  same 
state  with  themselves.  According  to  the  original 
Constitution,  they  were  not  to  designate  which  of  the 
two  they  vote  for  as  President,  and  which  as  Vice- 
president  ;  who  was,  nevertheless,  to  be  elected  at  the 
same  time,  in  the  same  manner,  and  for  the  samt> 
term  as  the  President.  It  was  merely  provided  thai 
the  person  having  the  greatest  number  of  votes  should 
be  the  President,  if  such  number  were  a  majority  of 
the  whole  number  of  electors  chosen,  and  that  the 
person  having  the  next  greatest  number  of  votes  of 
the  electors  should  be  the  Vice-president.     But  the 


02  LRCTURES     OM 

difficulty  already  adiided  to  as  having  occurred  ip 
1801,  in  procuring  a  constitutional  choice  from  an 
equality  in  the  electoral  votes  between  two  individ- 
uals, which  threatened  the  peace,  if  not  the  stability 
of  the  Union,  the  Constitution  w^as  so  amended  as  t(? 
require  the  electors  to  name  in  distinct  ballots  the 
persons  voted  for  respectively  as  President  and  Vice- 
president.  They  are,  then,  by  this  amendment  di- 
rected to  make  distinct  lists  of  all  voted  for  as  Presi- 
dent and  Vice-president,  and  of  the  number  of  votes 
given  for  each  respectively.  These  lists  they  are  to 
sign,  certify,  and  transmit  sealed  to  the  seat  of  gov- 
ernment of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate,  before  the  first  Wednesday  in 
January  next  ensuing  the  election.  An  act  of  Con- 
gress, passed  in  March,  1792,  requires  that  body  to  be 
in  session  on  the  second  Wednesday  in  Februar-y, 
when  the  President  of  the  Senate,  in  the  presence 
of  both  houses  of  Congress,  opens  the  certificates  re- 
ceived, and  the  votes  are  then  counted.  The  Con- 
stitution does  not  explicitly  declare  by  whom  the 
votes  are  to  be  counted,  and  the  result  proclaimed ; 
but  the  practice  has  been  for  the  President  of  the 
Senate  to  perform  those  duties.,  the  two  houses  being 
present  as  spectators,  to  witness  the  fairness  and  ac- 
curacy of  the  proceeding,  and  to  be  ready  to  act  in 
case  no  choice  be  made  by  the  electors. 

The  person  having  the  greatest  number  of  voles 
for  President  is  declared  to  be  elected  to  that  office, 
if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed  :  but  if  no  person  have  such  ma- 
jority, then  from  the  persons  having  the  highest  num- 
bers, not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  are  im- 
mediately, by  ballot,  to  choose  the  President.  Bui 
on  this  occasion  tlie  votes  are  to  be  taken  by  states, 


CONSTITUTIONAL    3  ORISPRUDENCE.  93 

ihe  representation  from  each  state  having  one  vote. 
A  quorum  for  the  purpose,  of  a  member  or  members 
from  two  thirds  of  the  states,  and  a  majority  of  all 
ihe  states,  is  necessary  Jo  a  choice.  Although  the 
Constitution  directs  that,  when  no  person  is  found  to 
have  a  majority  of  the  electoral  votes,  the  choice 
shall  be  immediately  made  by  the  House  of  Represent- 
atives, yet  it  is  not  held  obligatory  upon  that  house  to 
proceed  to  the  election  directly  upon  the  separation  of 
the  two  l/.ouses,  but  it  may  proceed  to  it  either  at  that 
time  and  place,  or  omit  it  until  afterward.  This  con- 
struction was  adopted  before  the  amendment  of  the 
Constitution,  and  there  can  be  no  question  since  in 
regard  to  its  correctness,  as  the  amendment  express- 
ly declares  the  choice  of  the  house  to  be  valid,  if 
made  before  the  fourth  of  March  following  the  day 
on  which  the  electoral  votes  are  counted.  Accord- 
ingly, in  1825,  when  there  was  again  no  choice  by 
the  electors,  the  House  of  Representatives  retired  to 
their  own  chamber,  and  on  both  occasions  the  Sen- 
ate were  allowed  to  be  present  as  spectators  only  of 
the  result. 

In  case  no  choice  of  President  be  made  by  the 
House  of  Representatives  before  the  time  thus  limited 
for  their  action,  it  is  declared  that  the  Vice-president 
shall  act  as  President,  as  in  the  case  of  the  death  or 
constitutional  inability  of  the  President.  The  amend- 
ment in  question  provides,  farther,  that  the  person 
having  the  greatest  number  of  votes  for  that  office 
shall  be  Vice-president,  if  such  votes  be  a  majority 
of  the  whole  number  of  electors  appointed  ;  and  that 
if  no  person  have  such  majority,  then  from  the  two 
highest  numbers  on  the  list  the  Senate  shall  choose 
the  Vice-president.  A  quorum  for  this  purpose  con- 
sists of  two  thirds  of  the  whole  number  of  senators 
and  a  majority  of  the  whole  is  necessary  to  a  choice 


94  LECTURES    ON 

But  no  person  constitutionally  ineligible  as  President 
can  be  elected  Vice-president.  The  Constitution,  as 
thus  amended,  does  not  prescribe  specifically  when 
or  where  the  Senate  is  to  choose  the  Vice-president 
in  case  no  choice  be  made  by  the  electors,  and  no 
case  has  occurred  to  form  a  precedent ;  but  from  an- 
alogy to  the  provision  and  practice  in  regard  to  the 
President,  it  is  presumed  that  the  Senate  may  elect 
one  at  any  time  before  the  ensuing  fourth  of  March 
With  respect  to  the  day  to  which  the  secondary  elec- 
tion is  in  both  cases  limited,  it  is  to  be  remarked  that 
it  was  adopted  in  reference  to  a  law  existing  previous- 
ly to  the  amendment  of  the  Constitution,  which  had 
already  declared  that  the  term  of  four  years  for  which 
the  President  and  Vice-president  are  elected,  shoidd 
commence  on  the  fourth  day  of  March  next  succeed- 
ing the  day  on  which  the  votes  of  the  electors  are 
given.  The  effect  of  the  amendment,  therefore,  is 
to  render  the  provisions  of  the  act  of  Congress,  rela- 
tive to  the  specific  times  appointed  for  the  several 
duties  enjoined  by  the  Constitution,  in  regard  to  the 
election  of  President  and  Vice-president,  as  perma- 
nent as  the  original  instrument  itself. 

Although  the  wisdom  and  policy  of  this  amend- 
ment of  the  Constitution  has  been  doubted  by  some 
of  our  ablest  jurists  and  statesmen,  there  are  others 
who  consider  it  an  improvement,  not  only  with  re- 
spect to  voting  separately  for  President  and  Vice- 
president,  in  reducing  the  number  of  candidates 
from  which  the  congressional  selection  of  a  Presi- 
dent is  to  be  made,  from  five  to  three,  while  the  Sen- 
ate, in  their  choice  of  a  Vice-president,  is  confined 
to  the  two  highest  numbers  of  those  voted  for  by  the 
electors.  In  another  particular,  also,  the  amendment 
may  be  considered  beneficial.  By  the  former  mode 
of  proceeding,  the  Senate  was  restrained  from  acting 


CONSTITUTIONAL     J  UKlSiMlUDENCE.  95 

until  the  bouse  had  made  its  selection  of  a  President, 
wliicb,  if  parties  ran  high,  might  be  indefinitely  de- 
layed. By  the  amendment,  the  Senate  may  proceed 
to  choose  a  Vice-president  immediately  on  the  decla- 
ring of  the  elect  ral  votes.  Under  the  original  mode, 
if  the  House  of  Representatives,  in  the  event  of  no 
choice  by  the  electors,  did  not  choose  a  President  by 
the  fourth  of  March,  tbe  Vice-president  then  in  office 
was  to  act  as  President  for  the  next  official  term  : 
so  that,  notwithstanding  the  public  confidence  might 
have  been  wholly  withdrawn  from  him,  he  would 
actually  become  President  for  the  ensuing  four  years, 
when  he  had  been  chosen  by  the  electors  in  refer- 
ence— not  in  form,  but  in  fact — to  the  Vice-presiden- 
cy, and  that,  too,  for  the  preceding  term  ;  whereas, 
on  the  plan  now  in  force,  if  no  President  be  chosen 
either  by  the  electors  or  by  the  House  of  Representa- 
tives, the  Vice-president,  then  to  fill  the  office  of 
President,  will  have  recently  received  the  siifTrages 
of  the  electors  as  well  as  of  the  Senate.  After  all, 
however,  it  may  well  be  doubted  whether  a  greater 
evil  has  not  been  introduced  by  the  amendment  in 
the  greater  facility  it  affords  to  party  organization, 
and  the  selection  of  mere  party  leaders,  which  was 
the  very  evil  intended  to  be  guarded  against  by  the 
former  regulation. 

From  a  review  of  these  various  provisions,  the 
mode  of  electing  the  supreme  magistrate  of  the 
Union  appears  to  be  well  calculated  to  secure  a  dis- 
creet choice,  and  to  avoid  those  evils  which  the  par- 
tisans of  monarchy  have  ascribed,  and  the  experi- 
ence of  past  ages  have  shown  to  belong,  to  popular 
elections.  It  must,  nevertheless,  be  acknowledged, 
that  the  large  and  elevated  views  of  the  men  who 
planned  the  Constitution,  and  the  expectations  of 
those  who  defended  this  portion  of  it,  upon  the  re- 


96  LECTURES    ON 

fined  theoretical  reasoning  I  have  adverted  to,  have 
not  been  realized  in  its  practical  operation  and  ef- 
fects. It  was  supposed,  as  I  have  mentioned,  that 
the  election  of  the  President  would  be  committed  to 
men  not  likely  to  be  swayed  by  party  or  personal 
bias  ;  who  would  act  unfettered  by  previous  commit- 
ments, uncontrolled  by  combinations  or  discipline, 
and  be  subject  neither  to  intimidation  nor  corruption  ; 
and  it  was  thought  that  the  choice  of  an  intermedi- 
ate body  of  electors,  consisting  of  several  members, 
would  be  much  less  apt  to  agitate  and  convulse  the 
community  than  the  election  of  a  single  person,  who 
was  himself  to  be  the  first  object  of  their  wishes. 
Perhaps  those  views  and  expectations  were  founded 
on  too  exalted  an  estimate  of  human  nature  ;  and 
that,  making  all  due  allowances  for  human  frailty 
and  imperfection,  they  have  not  been  altogether  frus- 
trated. Experience,  however,  has  proved  that  the 
electors  do  not,  in  fact,  assemble  for  a  strictly  free 
exercise  of  their  own  judgments,  but  for  the  pur- 
pose of  sanctioning  the  choice  of  a  particular  candi- 
date, previously  designated  by  their  party  leaders. 
In  some  instances,  the  principles  on  which  they  are 
constituted  have  been  so  far  forgotten,  that  the  indi- 
vidual opinion  of  the  electors  has  submitted  to  the 
dictation  of  those  by  whom  he  was  chosen ;  and  in 
others  the  electors  have  even  pledged  themselves 
beforehand  to  vote  for  a  candidate  prescribed  to  them 
by  the  managers  of  their  party  ;  and  thus  the  whole 
foundation  of  the  elaborate  theory  on  which  this  part 
of  the  Constitution  was  built  has  been  subverted  in 
practice.  The  essential  ends  of  the  Constitution 
have,  nevertheless,  been  attained  ;  and  in  a  govern- 
ment in  which  parties  must  ever  exist,  that  system 
may  be  deemed  salutary  in  its  operation  which  re- 
sults in  the  election  of  the  most  eminent,  or  even  the 


CONSTITUTIONAL    JURISPRUDENCE.  97 

most  popular  statesman  of  the  most  numerous  party 
Had  any  other  mode  of  election  been  adopted,  it 
would  have  been  impossible,  in  a  Republican  gov- 
ernment, to  have  excluded  party  considerations,  in- 
terests, and  feelings.  The  great  objects  were  to 
preserve  purity  as  well  as  harmony  in  the  election, 
and  secure  integrity  as  well  as  independence  in  the 
executive  power.  Had  the  choice  of  President  been 
referred  in  the  first  instance  to  Congress,  it  would, 
without  excluding  party  views  and  motives,  have 
rendered  him  too  dependant  on  the  immediate  au- 
thors of  his  elevation  to  comport  with  the  requisite 
energy  of  his  department,  Jind  have  tempted  him  to 
indulge  in  intrigues  and  manoeuvres  utterly  subver- 
sive of  the  fairness  of  the  election  and  the  purity  of 
his  own  character.  He  would  then  no  longer  con- 
sider himself  responsible  to  the  people,  but  w^ould  be 
prone  to  obey,  and  fearful  to  offend,  a  power  which, 
in  that  case,  would  have  shown  itself  greater  than  the 
people  themselves. 

Whether  greater  ferments  and  commotions  would 
accompany  a  general  election  of  the  President  by 
the  whole  body  of  the  people,  than  have  hitherto 
attended  the  elections  by  electors  (and  certainly 
these  have  as  yet  excited  no  real  alarm),  or  whether 
that  mode  of  election  would,  with  regard  to  the  pre 
scribed  ratio  of  representation,  be  conveniently  prac 
tised,  remains,  indeed,  to  be  ascertained.  It  has  beei^ 
objected  that  such  a  measure  would  "  lead  to  an  en* 
tire  consolidation  of  the  government,  and  the  annihi- 
fation  of  the  state  sovereignties,  so  far  as  concerns 
the  organization  of  the  executive  department."  Bui 
if  the  difference  should  consist  merely  in  the  form 
and  not  in  the  objects  of  the  election,  nor  in  the  au- 
thority which  orders  and  controls  it — if,  for  instance, 
the  people,  in  their  several  states,  instead  of  votiau 


9g  lectures  on 

for  electors,  should  in  the  same  manner,  at  the  same 
times  and  places,  and  under  the  same  regulations, 
vote  directly  for  the  President,  and  the  whole  num- 
ber of  votes  to  which  the  state  is  entitled  under  the 
present  provisions  of  the  Constitution,  should  be 
computed  as  given  to  the  person  receiving  the  high- 
est vote  from  the  people,  I  must  confess  my  inability 
to  discover  why  any  greater  danger  should  be  appre- 
hended to  the  sovereignty  of  the  states  than  exists 
under  the  present  system.  Nor  can  I  conceive  any 
sound  objection  to  such  an  amendment,  if  it  should 
include  a  provision  superseding,  by  a  secondary  re- 
sort to  electors,  the  ultimate  reference  now  made  in 
case  of  no  choice  by  the  electors  to  Congress.  On 
the  contrary,  upon  mature  consideration,  I  am  con- 
vinced that  such  an  alteration  would  be  found  an  es- 
sential improvement.  It  has,  indeed,  been  actually 
proposed  and  urged  in  Congress  with  great  force  of 
argument,  especially  the  part  which  substitutes  a 
final  election  by  electors,  in  place  of  the  last  resort 
to  the  House  of  Representatives,  in  cases  where  no 
choice  is  made  by  the  people. 

From  the  example  of  the  illustrious  individual 
who  first  held  the  office  of  President,  a  practice  has 
arisen,  and  seems  now  to  be  permanently  established, 
for  the  President  to  decline  a  second  re-election. 
As  this  precedent  has  never  as  yet  been,  and  proba- 
bly never  will  be  departed  from,  it  has,  in  elfect, 
limited  the  period  of  service  to  eight  years,  subject, 
however,  to  an  intermediate  election.  But  to  render 
the  President  more  independent,  the  administration 
more  stable,  and  the  people  more  secure,  it  would 
be  better  that  this  improvement  should  be  sanctioned 
and  legalized  by  being  incorporated  in  the  system  ; 
and  this  amendment  of  the  Constitution,  in  connexion 
with  that  already  suggested,  has  been  actually  brought 


CONSTITUTIONAL    JURISPRUDENCE.  99 

forward,  and  appears  to  be  favoured  by  somcj  of  the 
most  intelligent  and  upright  of  our  public  men 

Having  fully  explained  the  manner  in  which  ihe 
;supreme  executive  office  is  constituted,  and  the 
mode  of  electing  the  President,  I  proceed  to  con- 
sider, 

II.  The  powers  with  which  he  is  invested. 

1.  The  first  of  these  which  offers  itself  to  obser 
vation  is  one  which  has  already  been  adverted  to  in 
reviewing  the  legislative  department,  and  the  con- 
nexion between  it  and  the  executive  power,  for  the 
preservation  of  their  mutual  independence — I  mean 
the  qualified  negative  of  the  President  upon  the  con- 
current acts  of  Congress,  or  his  right  of  returning 
bills  and  resolutions,  with  his  objections  to  them,  to 
the  house  in  which  they  originated,  for  reconsider- 
ation, whereby  they  are  prevented  from  taking  effect 
as  laws,  unless  again  passed  by  two  thirds  of  the 
members  present  in  each  house  respectively. 

The  propensity  of  the  legislative  department  to  in- 
trude upon  the  rights  and  absorb  the  powers  of  the 
other  weaker  branches  of  the  government,  and  the 
consequent  necessity  of  furnishing  the  latter  with 
constitutional  arms  for  their  defence,  have  already 
been  the  subject  of  remark.  From  clear  and  indubi-* 
table  principles,  it  has  been  shown  that,  without  this 
control  over  the  proceedings  of  Congress,  the  ex- 
ecutive department  would  be  unable  to  sustain  itself 
aoainst  the  encroachments  of  the  Legislature.  The 
President  might  be  gradually  stripped  of  his  authority 
by  concurrent  resolutions  of  Congress,  or  so  weak- 
ened as  ultimately  to  be  annihilated  by  a  single  vote 
even  of  the  -more  popular  branch  of  the  Legislature  ; 
and  by  the  one  mode  or  the  other,  the  legislative  and 
executive  powers  might  speedily  be  united  in  the 
same  hands.     Indeed,  if  no  tendency  had  ever  been 


100  LECTURES    ON 

manifested  in  legislative  bodies  to  invade  the  rights 
of  the  executive  power,  just  reasoning  and  theoretic 
propriety  would  of  themselves  teach  us  that  the  one 
ought  not  to  be  left  to  the  mercy  of  the  other,  but 
should,  on  the  contrary,  be  endow^ed  with  a  constitu- 
tional and  effectual  power  of  self-defence. 

But  the  power  in  question  has  a  farther  use.  It 
not  only  serves  as  a  shield  to  the  executive  author- 
ity, but  affords  an  additional  security  against  the  en- 
actment of  improper  laws.  It  establishes  a  salutary 
guard  upon  the  legislative  power,  well  calculated  to 
defend  the  community  against  the  effects  of  faction, 
precipitancy,  or  any  impulse  hostile  to  the  public 
good,  which  may  happen  for  a  moment  to  influence 
the  majority  of  Congress.  The  propriety  of  resting 
such  a  power  in  the  chief  magistrate  has  been 
sometimes  combated  on  the  ground  of  its  presuming 
that  a  single  individual  was  possessed  of  more  wis- 
dom and  virtue  than  a  numerous  assembly.  The 
question,  however,  does  not  depend  upon  the  suppo- 
sition of  superior  wisdom  and  virtue  in  .the  Presi- 
dent, but  upon  the  presumption  that  the  Legislature, 
if  possessed  of  those  qualities  in  the  highest  degree, 
would  still  be  fallible  ;  that  the  love  of  power  would 
sometimes  dispose  them  to  acts  injuHous  lo  the  rights 
of  the  other  members  of  the  government ;  that  a 
spirit  of  faction  might  sometimes  pervert  their  delib- 
erations ;  and  that  momentary  impressions  might 
sometimes  impel  them  to  measures  which,  upon  ma 
ture  reflection,  they  would  themselves  condemn. 
Thus  the  primary  inducement  of  conferring  this 
power  on  the  President  is  to  enable  him  to  defend 
himself;  the  secondary,  to  increase  tha  chances  in 
favour  of  the  community  against  the  passage  of  bad 
laws  by  Congress,  through  haste,  inadvertence,  or 
design. 


CONSTITUTIONAL    JURISPRUDENCE.  _     101 

2.  The  President  is  consliluted  commander-iii- 
«hief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  states  when  called  into 
the  service  of  the  Union.  The  command  and  direc- 
tion of  the  public  force,  to  execute  the  laws,  maintain 
peace  and  tranquillity  at  home,  and  resist  invasion 
Irom  abroad,  are  powers  so  obviously  of  an  executive 
nature,  and  so  peculiarly  demand  the  exercise  ol 
qualities  characteristic  of  that  department  —  these 
duties  have  been  so  uniformly  appropriated  to  it  in 
every  well-organized  government,  and  are  so  con- 
sonant to  the  precedents  of  the  state  constitutions, 
that  little  is  necessary  to  explain  or  enforce  them. 
Of  all  the  cares  or  concerns  of  government,  the 
management  of  war,  which  implies  the  direction  ol 
the  public  force,  demands  most  peculiarly  the  exer- 
cise of  power  by  a  single  hand  ;  and  even  those  oi 
our  states  which  have,  in  other  matters,  coupled  their 
chief  magistrate  with  a  council,  have,  for  the  most 
part,  concentrated  the  military  authority  exclusively 
in  him. 

3.  The  President  has  the  sole  power  of  granting 
reprieves  and  pardons  for  offences  against  the  Uni- 
ted States,  except  in  cases  of  impeachment.  The 
necessity  of  such  an  authority  in  every  government 
arises  from  the  infirmities  incident  to  the  adminis . 
tration  of  human  justice.  And  were  it  possible  in 
every  case  to  maintain  a  just  proportion  between 
the  crime  and  the  penalty  ;  were  the  rules  of  testi- 
mony, and  the  mode  of  trial,  so  perfect  as  to  pre- 
clude every  possibility  of  mistake  or  injustice  ;  even 
then  policy  would  sometimes  require  the  remission 
of  a  punishment  strictly  due  for  a  crime  clearly  as- 
certained. Both  humanity  and  policy  dictate  that 
this  benign  prerogative  of  mercy  should  be  as  little 
as   possible   fettered   and  embarrassed,  and  suiiiiesi 


102  LECTURES    ON 

as  plainly  the  expediency  of  vesting  it  in  the  Presi- 
dent. 

As  the  sense  of  responsibility  is  always  stronger 
in  proportion  as  it  is  undivided,  it  may  justly  be  in- 
ferred that  one  man  will  be  most  ready  to  listen  to 
the  force  of  motives  and  reasons  for  mitigating  the 
rigour  of  the  law,  and  least  apt  to  yield  to  induce- 
ments calculated  to  shelter  a  fit  object  from  its  ex- 
emplary visitation ;  while,  on  the  other  hand,  as 
men  generally  derive  confidence  from  their  numbers, 
it  may,  with  equal  justice,  be  apprehended  that  they 
might  often  encourage  each  other  in  acts  of  obduracy, 
and  be  less  sensible  to  the  dread  of  censure  for  an 
injudicious  or  affected  clemency.  The  power  of 
pardon  vested  in  the  President  is  not,  however,  with- 
out limitation.  He  is  precluded,  as  we  have  seen,  in 
cases  of  impeachment,  from  screening  public  officers, 
with  whom  he  might  possibly  have  formed  a  danger- 
ous or  corrupt  coalition,  or  may  frequently  be  his  fa- 
vourites and  dependants. 

4.  The  President  has  power,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  to  make  treaties,  pro- 
vided two  thirds  of  the  senators  present  concur. 

Much  difference  of  opinion  seems  to  prevail  among 
writers  on  government  upon  the  question  whether, 
in  the  natural  distribution  of  power,  the  authority  to 
negotiate  and  conclude  compacts  and  arrangements 
with  foreign  nations  is  properly  of  legislative  or  of  ex- 
ecutive cognizance.  As  treaties  are  declared  by  the 
(Jonstitution  to  be  a  part  of  the  supreme  law  of  the 
land  ;  as  by  means  of  these  national  engagements 
new  relations  are  formed,  and  new  obligations  con- 
tracted, it  seems  more  consonant  to  the  principles  of 
the  government  to  consider  the  right  of  entering  into 
them  as  falling  within  the  jurisdiction  of  the  Legis- 
lature.    On  the  other  hand,  the  preliminary  negotia- 


CONSTITCTIONAL   JURtSR^UD: 


tions  which  may  be  require(|(  and;^the  secrecwAi 
despatch  proper  to  take  advattagJe  of  a  sudd^  al^ 
favourable  turn  in  public  affairs, ^render  it  expedierU''^  \ 
to  place  this  power  in  the  hand$  of  tlie  execiit^^e.  ^^ 
The  framers  of  the  Constitution  were  influence'd  by 
the  latter  more  than  the  former  consideration  ;\  but 
although  the  power  in  question,  if  we  carefufly  at- 
tend to  its  operation,  will  be  found  to  partake  more 
of  the  legislative  than  of  the  executive  character,  yet 
it  does  not  seem  to  fall  strictly  within  either.  The 
essence  of  the  legislative  power  is  to  prescribe  laws 
for  the  regulation  of  the  commonwealth ;  while  the 
execution  of  those  laws,  and  the  employment  of 
the  public  force,  either  for  that  purpose,  or  for  the 
common  defence,  comprise  all  the  proper  functions 
of  the  executive  magistrate.  The  power  of  making 
treaties  relates  neither  to  the  execution  of  subsisting 
laws,  nor  to  the  making  of  new  ones.  Its  objects  are 
contracts,  which  have,  indeed,  the  force  of  laws,  but 
derive  that  force,  not  from  legislation,  but  from  the 
obligations  of  good  faith.  They  are  not  rules  pre- 
scribed by  the  supreme  legislative  power  to  the  citi- 
zens of  the  state,  but  agreements  between  sovereign 
and  independent  states.  This  power,  then,  forms  a 
distinct  department,  and  the  Constitution  has  wisely 
confided  it  to  the  President. 

The  qualities  indispensable  in  the  management  of 
international  intercourse  and  negotiation,  point  to  the 
President  as  the  most  fit  organ  of  communication 
with  foreign  powers,  and  the  efficient  agent  in  the 
conclusion  of  treaties  ;  while  the  vast  importance  of 
the  trust,  and  the  operation  of  treaties  as  laws, 
strongly  recommend  the  participation  of  a  portion,  at 
least,  of  the  legislative  power  in  the  office  of  making 
them.  The  Senate  was  most  judiciously  selected  for 
that  purpose,  not  only  as  the  deposite  of  the  power  in 


104  LECTURES    U^ 

that  body  imparts  additional  strength  and  security  to 
it  as  the  weaker  branch  of  the  Legislature,  but  be- 
cause from  its  smaller  number  and  greater  perma- 
nence, it  may  be  more  readily  convened,  and  is  gov- 
erned by  steadier  and  more  systematic  views  of  pub- 
lic policy,  and  enabled  to  act  with  due  promptitude 
and  firmness. 

5.  The  President  is  invested  with  the  power  to 
nominate,  and,  with  the  advice  and  consent  of  the 
Senate,  to  appoint  ambassadors,  and  other  public 
ministers,  and  consuls,  judges  of  the  Supreme  Court, 
and  all  other  officers  of  the  United  States  whose  ap- 
pointments are  not  otherwise  provided  for,  and  which 
shall  be  established  by  lav/.  But  Congress  may 
vest  the  appointment  of  such  inferior  office'-s  as  they 
may  think  proper  in  the  President  alone,  ir\  the  courts 
of  law,  or  in  the  heads  of  departments. 

The  exercise  by  the  people  at  large  of  this  power 
of  appointing  the  subordinate  officers  of  the  govern- 
ment would  be  impracticable  ;  and  a  concurrent  right 
of  nomination  by  the  Legislature,  or  any  other  select 
body,  would  afford  great  temptation  and  opportunity 
to  intrigue,  favouritism,  and  corrupt  cabals,  besides 
releasing  the  appointing  power  from  all  responsibility. 
No  plan,  I  think,  could  have  been  devised  better  cal- 
culated, on  the  whole,  to  promote  a  judicious  choice 
of  men  to  fill  the  public  offices,  than  that  which  was 
udopted.  The  power  of  selecting  the  heads  of  de- 
partments (which,  by-the-way,  are  not  otherwise  rec- 
ognised in  the  Constitution)  established  by  law,  to 
aid  the  President  in  the  discharge  of  his  executive  du- 
ties ;  of  nominating  agents,  to  whom  the  immediate 
conduct  of  our  international  affairs  and  the  negotia- 
tion of  foreign  treaties  are  confided  ;  and  of  selecting 
the  proper  men  for  high  judicial  stations,  is,  with  pe- 
culiar propriety,  vested  in  the  President,  who  is  held 


CONSTITUTIONAL    JURISPRUDENCE.  105 

responsible  for  those  acts  of  his  immediate  assistants 
and  confideAtial  advisers  which  receive  his  sanction, 
who  is  charged  with  the  management  of  foreign  af- 
fairs, and  bound  to  see  both  treaties  and  the  laws 
faithfully  executed. 

But  the  association  of  the  Senate  with  the  Presi- 
dent in  the  exercise  of  this  power  is  an  exception 
to  the  general  delegation  of  the  executive  authority 
which,  were  it  not  accompanied  by  the  provision 
vesting  in  him  the  exclusive  right  of  nomination, 
would  be  attended  by  the  evils  already  adverted  to. 
This  power  of  nomination  is,  for  all  the  useful  pur- 
poses of  restraint,  equivalent  to  the  power  of  abso- 
lute appointment,  and  imposes  upon  the  President 
the  same  vivid  sense  of  responsibility,  and  the  same 
necessity  of  meeting  the  public  approbation  or  cen- 
sure ;  while  the  advice  and  consent  of  the  Senate, 
which  are  necessary  to  render  the  nomination  effect- 
ual, can  never  be  attended  with  any  mischievous 
consequences,  and  must  at  all  times  prove  a  check 
upon  the  misinformation  or  errors  of  the  President. 
To  prevent  the  inconvenience  which  would  arise 
from  occasional  vacancies  in  office  when  the  Senate 
is  not  in  session,  the  President  has  power  to  fill  up 
those  which  happen  during  recess,  by  granting  com- 
missions which  expire  at  the  end  of  the  next  ses- 
sion of  Congress. 

6.  The  remaining  duties  of  the  President  consist 
in  giving  information  to  Congress  of  the  state  of  the 
Union,  and  recommending  to  their  consideration 
such  measures  as  he  shall  judge  necessary  or  expe- 
dient. He  may,  on  extraordinary  occasions,  con- 
vene both  houses  of  Congress,  or  either  of  them,  and 
in  case  of  disagreement  between  them,  he  may,  as 
we  have  seen,  adjourn  them  to  such  time  as  he  may 
think  proper.  It  is  his  duty  to  receive  ambassadors 
I 


106  LECTURES    ON 

and  other  public  ministers,  to  commission  all  officers 
of  the  United  States,  and  generally  and  comprehen- 
sively to  take  care  that  the  laws  be  faithfully  execu- 
ted. 

III.  The  supjjort  of  the  President,  which  is  the 
next  subject  of  examination,  is  secured  by  a  provis- 
ion in  the  Constitution,  which  declares  that  he  shall, 
at  stated  times,  receive  for  his  services  a  compensa- 
tion, which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  was  elected  ;  and 
that  he  shall  not  receive  within  that  time  any  other 
emolument  from  the  United  States,  or  any  of  them. 
This  provision  was  intended  to  strengthen  and  pre- 
serve the  proper  independence  and  energy  of  the  ex- 
ecutive department.  It  would  be  in  vain  to  declare 
that  the  different  departments  of  the  government 
should  be  separate  and  distinct,  if  the  Legislature 
possessed  a  control  over  the  salaries  of  the  chief  ex- 
ecutive magistrate  and  the  judicial  officers.  This, 
indeed,  would  be  to  disregard  the  voice  of  experi- 
ence, and  the  operation  of  invariable  principles  of 
human  conduct.  The  Constitution  of  Virginia,  for 
instance,  considers  it  a  fundamental  axiom  of  gov- 
ernment, that  the  three  great  departments  should  be 
kept  distinct,  so  that  neither  of  them  should  exercise 
the  powers  properly  belonging  to  another.  But,  with- 
out taking  any  precautions  to  preserve  this  principle 
in  practice,  it  renders  the  governor  dependant  upon 
the  Legislature  for  his  annual  existence  and  support. 
The  result  was,  as  Mr.  Jefferson  informs  us,  *'  that 
during  the  whole  session  of  the  Legislature,  the  direc- 
tion of  the  executive  by  that  body  was  habitual  and 
familiar." 

The  Constitution  of  Massachusetts  discovered 
more  wisdom,  and  aflbrded  the  first  example  of  a 
constitutional  provision  for  the  support  of  the  execu- 


COiNSTITUTiONAL    JURISPRUDENCE.  107 

tivc  magistrate,  by  declaring  that  the  governor  should 
have  a  salary  of  a  fixed  and  permanent  value,  amply 
sufficient,  and  established  by  standing  laws.  Those 
state  constitutions  which  have  been  made  or  amend- 
ed since  the  adoption  of  the  Constitution  of  the  Uni- 
ted States,  have  generally  followed  the  example 
which  it  happily  set  to  them  in  this  and  many  other 
particulars  ;  and  it  has  been  well  observed  by  one  of 
our  jurists,  that  "  we  may  consider  it  as  one  of  the 
most  signal  blessings  bestowed  on  this  country,  that 
we  have  such  a  fabric  as  the  Federal  Constitution 
constantly  before  our  eyes,  not  only  for  national  pro- 
tection, but  for  local  imitation  and  example." 

The  appointment  of  an  extraordinary  person  as 
Vice-president  of  the  United  States,  and  ex  officio 
President  of  the  Senate,  was  originally  objected  to 
as  superfluous,  if  not  mischievous.  But  it  was  jus- 
tified principally  on  two  considerations  :  the  first  was, 
that,  to  secure  at  all  times  a  definite  resolution  of  the 
Senate,  it  was  necessary  that  the  president  of  that 
body  should  have  a  casting  vote  ;  and  to  take  a  sena- 
tor from  his  seat  as  senator,  and  place  him  in  that  of 
the  presiding  officer,  w^ould  be,  in  regard  to  the  state 
from  which  he  came,  to  exchange  a  constant  for  a 
contingent  vote.  The  other  consideration  was,  that 
as  the  Vice-president  may  occasionally  become  a 
substitute  for  the  President  in  the  supreme  executive 
office,  all  the  reasons  which  recommend  the  mode  of 
election  prescribed  in  the  first  instance  for  the  one, 
apply  with  great,  if  not  with  equal  force,  to  the  other. 
The  powers  and  duties  of  President  devolve  on  the 
Vice-president,  not  only  when  no  choice  is  made  by 
the  electors  or  the  House  of  Representatives,  but 
also  in  case  of  the  President's  removal  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge 
his  duties  j  and  Congress  is  authorized  to  provide  by 


108  LECTURES    ON 

law  for  the  case  of  vacancies  in  the  offices  of  both 
President  and  Vice-president.  In  pursuance  of  this 
power,  it  has  been  enacted  that,  in  the  event  of  such 
vacancies,  the  President  of  the  Senate  pro  tempore^ 
and  in  case  there  should  be  no  such  President  oi'  the 
Senate,  that  the  Speaker  of  the  House  of  Represent- 
atives for  the  time  being,  shall  act  as  President  of 
I  he  United  States  until  the  vacancy  be  supplied 
The  evidence  of  a  refusal  to  accept,  or  of  a  resigna- 
tion of  the  office  of  President  or  Vice-president,  is 
declared  by  the  same  act  of  Congress  to  be  a  decla- 
ration in  writing,  liled  in  the  office  of  the  Secretary 
of  State. 

As  it  might  become  a  question  who  would  be  the 
person  to  serve,  if  the  office  of  President  should  de- 
volve on  the  Speaker  of  the  House  of  Representa- 
tives, after  the  Congress  for  which  the  last  speaker 
was  chosen  had  expired,  and  before  the  new  Con- 
gress meet,  it  is  usual  for  the  Vice-president  to  with- 
draw from  the  Senate  shortly  before  the  adjourn- 
ment of  the  session,  in  order  to  afford  an  opportunity 
to  that  body  to  choose  a  president  pro  tempore ;  and 
if  he  should  die  or  resign  during  the  recess  of  Con- 
gress, and  a  casual  vacancy  occur  in  the  offices  of 
President  and  Vice-president,  the  former  speaker 
would  probably  be  deemed  the  person  upon  whom 
the  office  was  intended  to  devolve.  If  the  Vice- 
president  succeeds  to  the  office  of  President,  he  con- 
tinues in  it  until  the  expiration  of  the  term  for  which 
the  President  was  elected  ;  and  if  both  offices  are 
vacant,  it  is  made  the  duty  of  the  Secretary  of  State 
to  take  measures,  under  the  act  of  Congress,  for  the 
election  of  a  President.  But,  as  that  act  was  passed 
before  the  amendment  of  the  Constitution,  and  that 
amendment  omitted,  perhaps  intentionally,  to  piovido 


CONSTlTUTId  NAL    JURISPRUDENCE.  109 

for  the  case,  a  Vice-president  cannot  be  elected,  m 
case  of  a  vacancy,  until  the  next  regular  period.* 

In  addition  to  all  the  other  precautions  to  prevent 
ibuse  of  the  executive  trust,  in  the  mode  of  the  Pres- 
ident's appointment,  in  the  limitation  of  his  term  of 
office,  and  in  the  precise  and  definite  restrictions  on 
the  exercise  of  his  powers,  the  Constitution  has  ren- 
dered him  amenable  to  justice  for  mal-administration. 
The  President,  as  well  as  all  other  officers  of  the 
government,  may  be  impeached,  as  we  have  seen, 
for  treason,  bribery,  and  other  high  crimes  and  mis- 
demeanours, and,  upon  conviction,  removed  from  of- 
fice. The  inviolability  of  the  supreme  magistrate, 
as  maintained  in  the  English  law,  is  incompatible 
with  the  theory  of  our  government,  as  well  as  with 
the  principles- of  retributive  justice  ;  and  if  neither  the 
sense  of  duty,  the  force  of  public  opinion,  nor  the 
transitory  nature  of  his  power,  prove  sufficient  to  se- 
cure the  faithful  discharge  of  the  executive  office — if 
the  President  of  the  United  States  will  use  the  au- 
thority of  his  station  to  violate  the  Constitution  and 
laws,  even  he,  as  easily  and  as  promptly  as  any 
subordinate  officer,  may  be  arrested  in  his  course 
by  an  impeachment.  Considering  the  nature  and 
extent  of  the  authority  necessarily  incident  to  the  sta- 
tion, it  was  difficult  to  constitute  the  office  of  Presi- 
dent so  as  to  render  it  equally  safe  and  efficient,  by 
combining,  in  the  structure  of  its  power,  a  due  pro- 
{)ortion  of  energy  and  responsibility.  The  former  is 
necessary  to  maintain  a  firm  administration  of  the 
laws  ;  the  latter,  to  preserve  inviolate  the  rights  of 
the  people  and  of  the  states.  "  The  authors  of  the 
Federal  Constitution,"  says  the  abfe  jurist  I  have  so 
frequently  quoted,  "  appear  to  have  surveyed  these 

*  Mr,  Justice  Story,  in  his  Commentaries,  §  14,  77,  hints  a  doubi 
whether  this  act  be  constitutional 


no  LECTURES    ON 

two  objects  w\th  profound  disceriiineiit,  and  have  or- 
ganized the  executive  department  with  consummate 
skill." 


LECTURE  V. 

OF    THE    JUDICIAL    POWER. 

As  the  personal  security  and  private  property  of 
every  individual  depend  on  the  wisdom,  stability,  and 
integrity  of  the  courts  of  justice,  the  judicial  power 
interferes  more  directly  and  uniformly  than  either  of 
the  other  departments  with  ail  the  concerns  of  social 
and  private  life.  No  government  can  be  complete 
in  its  form,  or  perfect  in  its  principles  of  organiza- 
tion, without  this  power.  To  make  laws  and  exe- 
cute them  are  the  respective  objects  of  the  other  two 
departments,  and  are,  indeed,  the  two  principal  oper 
ations  of  government.  But  laws  cannot  be  fully  and 
correctly  executed  unless  there  be  a  power  in  the 
state  to  expound  and  apply  them.  This  power  be- 
ing auxiliary  to  the  executive  authority,  partakes,  in 
some  degree,  of  its  nature.  But  its  office  is,  in  some 
cases,  to  control  the  exercise  of  executive  power ; 
and  those  acts  of  the  latter,  which  are  judicially  de- 
clared to  be  unconstitutional  or  unlawful,  are  thereby 
rendered  inoperative  and  void.  The  judicial  depart- 
ment may  also  be  said  to  participate  in  the  legisla- 
tive power,  as  its  construction  of  legislative  acts  is 
binding  and  conclnsive,  although  this  does  not  prevent 
the  Legislature  from  repairing  defects  or  explaining 
ambiguities,  by  subsequent  laws  operating  on  subse- 
quent cases. 

A  higher  function,  moreover,  appertains  to  this  de- 


CONSTITUTIONAL    JURISPRUDENCE.  Ill 

partment,  under  a  written  constitution,  founded  upon 
true  principles  of  representation,  and  establishing  a 
just  separation  of  the  three  varieties  of  government ; 
and  that  is  to  expound  the  Constitution,  and  thereby 
test  the  validity  of  the  acts  of  the  Legislature,  as  well 
as  those  of  the  executive  department,  in  all  cases 
where  the  question  as  to  their  construction  arises  in 
a  suit  at  law,  or  in  equity.  Hence  the  more  impe- 
rious and  absolute  necessity  of  securing,  by  funda- 
mental provisions,  the  independence  of  the  judicial 
power.  A  constitution  which  omitted  to  establish 
an  adequate  judicial  power  could  not  successfully  be 
carried  into  effect ;  and  if,  instead  of  being  rendered 
independent,  that  power  be  united  with  one  or  both 
of  the  other  departments,  or  if  those  charged  with  its 
administration  were  made  dependant  on  either  of 
them,  its  dignity  and  utility  would  be  destroyed. 

The  judicial  power,  in  every  government,  must  be 
coextensive  with  the  power  of  legislation.  Were 
there  no  power  to  interpret,  pronounce,  and  enforce 
the  law,  the  government,  if  it  did  not  perish  by  its 
own  weakness,  would  be  corrupted  by  the  usurpation 
of  new  powers  by  the  Legislature,  to  the  subversion 
of  public  liberty.  But  the  judicial  authority  cannot, 
by  the  force  of  language,  be  made  to  exceed  the  le- 
gislative power,  for  such  excess  would  be  inconsist- 
ent with  its  nature  ;  and  if,  by  express  terms,  it 
should,  on  the  other  hand,  be  so  restricted  as  to  em- 
brace a  part  only  of  the  subjects  of  actual  legislation, 
'he  integrity  and  efficiency  of  the  whole  system  would 
he  materially  impaired.  The  Constitution,  therefore, 
establishes  the  judicia  power  as  a  substantive,  inte- 
gral, and  independent  branch  of  the  government ;  and 
this  was  the  more  necessary,  from  the  extraordinary 
complications  of  the  authority  of  the  United  States 
with  that  of  the  several  states,  resulting  unavoidably 


112  LECTURES    ON 

from  the  nature  of  the  Federal  Union.  The  judicial 
power  of  the  National  Government  is  accordingly 
vested  "  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  Congress  may  from  time  to  time  ordain  and 
establish."  A  chief-justice  is  recognised  in  the  article 
which  provides  that  when  the  President  shall  be  im- 
peached, the  chief-justice  shall  preside  ;  and  the  exist- 
ence of  other  judges  is  contemplated  by  the  provision 
which  prescribes  the  manner  of  their  appointment. 
The  complete  organization,  however,  of  the  Supreme 
Court,  as  well  as  the  establishment  of  inferior  and 
subordinate  courts,  is  provided  for  by  statute. 

In  the  survey  which  I  propose  to  take  of  this  in- 
teresting and  important  branch  of  the  Federal  Gov- 
ernment, I  shall  consider,  Firsts  the  manner  in  which 
it  is  constituted,  and.  Secondly^  the  extent  and  distri- 
bution of  its  authority. 

The  first  point  embraces  these  several  objects, 
viz. :  the  mode  in  which  the  judges  of  the  several 
courts  of  the  United  States  are  appointed^  the  tenure 
by  which  they  hold  their  offices,  the  provision  for 
their  support^  and  the  precautions  to  secure  their  re- 
sponsihility . 

\st.  The  mode  of  appointing  public  officers,  by 
the  President  and  Senate,  I  have  already  spoken  of 
as  generally  advantageous,  and  it  seems  to  me  pe- 
culiarly fit  and  proper  with  respect  to  the  judicial  de- 
partment. The  just  and  vigorous  investigation  and 
punishment  of  every  species  of  fraud  and  violence, 
and  compelling  every  man  punctually  to  fulfil  his  con- 
tracts, are  duties  not  certainly  of  the  most  popular 
character,  although  the  faithful  discharge  of  them 
will  always  command  the  approbation  of  the  candid 
and  judicious.  The  fittest  men  would  probably  pos- 
sess too  much  reserve  and  too  much  severity  of  mor- 
als to   secure  an  election  depending  on  universal 


CONSTITUTIONAL    JURISPRUDENCE.  113 

suffrage  ;  nor  would  the  mode  of  appointment  by  a 
large  deliberative  assembly  be  entitled  to  unqualified 
approbation.  There  are  too  many  occasions,  and  too 
many  temptations  for  intrigue  and  party  prejudices, 
and  too  much  scope  for  the  interference  of  local  in- 
terests, to  permit  such  a  body  to  act  in  such  cases 
with  a  sulliciently  single  and  steady  regard  for  the 
public  welfare. 

2iZ.  The  jud.ges,  voth  of  the  supreme  and  inferior 
courts,  hold  their  offices  during  good  behaviour. 
This  tenure,  as  a  standard  for  the  duration  and 
continuance  in  office  of  the  judicial  magistracy,  is 
considered  by  the  authors  of  "  The  Federalist"  as 
one  of  the  most  valuable  of  modern  improvements  in 
the  practice  of  government.  In  a  monarchy,  it  is 
a  necessary  barrier  against  the  despotism  of  the 
prince ;  in  a  republic,  it  is  no  less  essential  as  a 
defence  aigainst  the  encroachments  of  the  executive 
and  legislative  powers  ;  and  it  is  the  best  expedient 
that  can  be  devised  in  any  government,  to  secure  ; 
a  steady,  upright,  and  impartial  administration  of 
the  laws.  This  principle,  which  has  been  the  sub- 
ject of  so  much  deserved  eulogy,  is  one  of  the  many 
benefits  derived  from  the  land  of  our  forefathers, 
where  the  judges  anciently  held  their  seats  at  the 
pleasure  of  the  crown,  as  does  the  chancellor  to 
this  day.  It  is  easy  to  conceive  what  a  dangerous 
influence  this  must  have  given  to  the  king  in  the  ad- 
ministration of  justice,  in  those  cases  where  the 
claims  or  pretensions  of  the  government  were  made 
to  bear  on  the  rights  of  a  private  individual.  And 
although,  in  the  reign  of  James  the  First,  the  barons 
of  the  exchequer,  being  the  court  in  which  jurisdic- 
tion is  taken  of  all  matters  relative  to  the  revenues 
and  property  of  the  crown,  were  created  during  good 
behaviour ;  and  although  the  commissions  of  the  oth» 


114  LECTURES    ON 

er  judges  also  were  made  so  to  run  at  the  restora* 
tion  of  Charles  the  Second,  it  still  remained  at  the 
pleasure  of  the  crown  to  prescribe  the  form  of  the 
commission,  until  the  statute  of  WilUam  and  Mary 
established  the  commissions  of  all  the  common- 
law  judges  to  be  quam  diu  bene  se  gesserint.  The 
excellence  of  this  provision  has  recommended  its 
adoption  by  other  nations  of  Europe,  and  it  prevails 
in  most  of  our  state  constitutions,  but  in  some  of 
them  under  modifications  more  or  less  extensive  and 
injurious. 

Whoever  attentively  considers  the  different  de- 
partments of  power,  must  perceive  that,  in  a  govern- 
ment in  which  they  are  separated  from  each  other, 
the  judiciary,  from  the  nature  of  its  functions,  will  al- 
ways be  the  least  dangerous  to  the  political  rights 
secured  by  the  Constitution,  because  it  will  have  the 
least  capacity  to  invade  or  injure  them.  The  execu- 
tive power  not  only  dispenses  the  honours,  but  wields 
the  sword  of  the  community ;  the  Legislature  not 
only  holds  the  public  purse,  but  prescribes  the  rules 
by  which  the  rights  and  duties  of  every  citizen  are 
to  be  enjoyed  and  regulated.  But  the  judicial  power 
has  no  command  over  the  sword  or  the  purse  ;  no 
direction  either  of  the  strength  or  the  wealth  of  the 
society,  and  can  take  no  active  resolution  whatsoever. 
It  has  been  truly  and  emphatically  said  to  have  "  nei- 
ther force  nor  will,  but  merely  judgment ;"  and  even 
for  the  exercise  of  this  faculty,  it  must  depend  on  the 
protection  and  support  of  the  executive  arm.  This 
view  of  the  subject  shows,  in  the  first  place,  that  the 
judicial  is,  beyond  all  comparison,  the  weakest  of 
the  three  departments  of  power ;  that  it  can  never 
attack,  with  success,  either  of  the  others,  and  that  all 
possible  care  is  required  to  defend  it  against  attacks 
from  them.     It  also  shows  that,  although  individual 


CONSTITUTIONAL  JURISPRUDENCE.    115 

oppression  may  now  and  then  proceed  from  the  courts 
of  justice,  yet  the  general  liberty  of  the  people  can 
never  be  endangered  from  that  quarter,  so  long  as  the 
judicial,  remains  truly  distinct  from  the  legislative  and 
executive  powers.  And  it  shows,  lastly,  as  a  conse- 
quence of  these  previous  deductions,  and  bearing 
immediately  on  the  point  we  are  considering,  that  no- 
thing can  contribute  so  much  to  the  firmness  and  in- 
dependence of  the  judicial  power  as  permanency  in 
office.  This  quality,  therefore,  may  justly  be  re- 
garded as  an  indispensable  ingredient  in  its  consti- 
tution, and  as  rendering  it  the  great  security  of  pub- 
lic justice,  liberty,  and  safety. 

3d.  In  addition  to  the  tenure  by  which  the  judges 
hold  their  offices,  the  permanent  provision  for  their 
support  is  admirably  adapted  to  secure  their  inde- 
pendence. It  tends,  also,  to  secure  a  succession  of 
learned  men  for  the  bench,  who,  in  consequence  of  a 
certain  fixed  support,  are  induced  to  relinquish  the  lu- 
crative pursuit  of  their  practice  at  the  bar  for  the  duties 
of  a  more  important  and  honourable  station — a  seat  on 
the  bench.  The  Constitution  declares,  on  this  sub- 
ject, that  all  the  judges  of  the  United  States  "  shall,  at 
stated  times,  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continu- 
ance in  office  ;"  and  this  provision  was  deemed  an 
improvement  upon  the  previously  existing  constitu- 
tions of  the  states.  It  was  ordained  in  the  Consti- 
tution of  Massachusetts,  that  permanent  and  honour- 
able salaries  should  be  established  by  law  for  the 
judges.  But  this  was  not  sufficiently  precise  and 
definite,  and  the  more  certain  provision  in  the  Fed- 
eral Constitution  has  been  wisely  followed  in  the 
subsequent  constitutions  of  several  of  the  individual 
states. 

The  complete   and  perfect  independence  of  the 


IIB  J.ECTLUIES     UN 

judges  is  peculiarly  requisite  in  a  limited  constitution, 
which,  like  that  of  the  United  States,  contains  certain 
specific  restrictions  upon  legislative  authority,  both 
of  the  Federal  and  State  Governments  ;  such,  for  in- 
stance, as  that  '•  Congress  shall  pass  no  bills  of  at- 
tainder or  ex  post  f  ado  law,"  and  that  "  no  state  shall 
coin  money,  emit  bills  of  credit,  or  pass  laws  im- 
pairing the  obligation  of  contracts."  Limitations  of 
neither  of  these  kinds  can  be  preserved  in  practice 
in  any  other  way  than  through  the  instrumentality 
of  courts  of  justice  ;  and  it  is  a  wise  and  necessary 
principle  of  our  government,  as  I  shall  show  more 
fully  hereafter,  that  the  acts  both,  of  the  Federal  and 
State  Legislatures  are  subject  to  the  severe  scrutiny 
and  impartial  interpretation  of  tribunals  who  are  bound 
to  regard  the  Constitution  as  the  paramount  law,  and 
the  highest  evidence  of  the  will  of  the  people  ;  and, 
consequently,  to  declare  void  all  acts  contrary  to  its 
tenour.  Without  this  power,  not  only  all  the  limita- 
tions and  restrictions  such  as  I  have  specified,  but 
all  the  reservations  of  rights  and  privileges,  either  to 
the  several  states,  or  their  individual  citizens,  would 
be  ineffectual  and  nugatory. 

4//i.  But  while  the  Constitution  has  thus  rendered 
the  federal  courts  independent  of  undue  influence 
from  the  other  departments  of  the  government,  it  has 
adopted  a  precaution  for  their  responsibility,  by  ren- 
dering them  amenable  for  any  corrupt  violation  of 
iheir  trust ;  and  the  judges  of  the  United  States  may 
be  held  to  answer  upon  an  impeachment ;  and,  if  con- 
victed, they  may  be  removed  from  the  bench,  and  dis- 
qualified from  holding  any  office  in  the  government. 
This,  perhaps,  is  the  only  provision  consistent  with 
the  necessary  independence  of  the  judicial  character 
in  a  government  of  the  complex  nature  of  that  of  the 
United  States,  and  is  the  only  one  to  be  found  rela- 
tive to  the  subject,  in  the  Constitution. 


CONSTITUTIONAL  JURISPRUDENCE.    117 

The  want  of  a  provision  for  removing  tlie  judges 
^n  account  of  inability,  or  upon  the  address  of  the  Le- 
gislature, which  exists  not  only  in  England,  but  in 
some  of  the  states  of  this  Union,  afforded  ground  of 
objection  when  the  Federal  Constitution  was  under 
discussion  in  the  state  conventions.  But  the  most 
wise  and  considerate  men  of  that  period  believed  that 
such  a  provision  could  not  be  reduced  to  practice, 
or,  in  a  government  like  ours,  be  more  liable  to  abuse 
than  productive  of  good  consequences.  A  provision 
similar  to  that  in  the  Constitution  of  New-York,  which 
limits  the  duration  of  the  highest  judicial  officers  to 
.he  age  of  sixty  years,  was  also  complained  of  as  an 
amission  in  the  Federal  Constitution  ;  but  it  was  ad- 
aiirably  replied  by  General  Hamilton,  one  of  the 
ablest  and  most  illustrious  defenders  of  that  instru- 
ment, that,  "  in  a  republic  where  fortunes  are  not 
affluent,  and  pensions  not  expedient,  the  dismission 
of  men  from  stations  in  which  they  have  served  their 
country  long  and  usefully — on  which  they  depend  for 
subsistence,  and  from  which  it  will  be  too  late  to  re- 
sort to  any  other  occupation,  should  have  some  bet- 
ter apology  to  humanity  than  is  to  be  found  in  the 
imaginary  danger  of  a  superannuated  bench." 

The  Federal  Judiciary  being  established,  as  I  have 
explained,  on  principles  essential  to  maintain  that 
department  in  a  proper  state  of  independence,  and  to 
secure  a  pure  and  vigorous  administration  of  the  law 
the  Constitution  proceeds  to  designate  the  objects  of 
its  jurisdiction. 

It  extends  the  judicial  power  of  the  United  State> 
to  all  cases  in  law  and  equity  arising  under  thi 
Constitution  and  laws  of  the  Union,  and  treaties  mad* 
under  their  authority  ;  to  all  cases  affeciing  amhas 
sadors,  other  public  ministers,  and  consuls  ;  to  all  ca 
ses  o{  admiralty  and  maritime  jurisdiction  ;  to  contrc 


lis  LECTURES    ON 

versies  ^o  which  the  United  States  are.  a  party ;  to 
controversies  between  two  or  more  states ;  between  a 
state,  when  "plaintiff,  and  citizens  of  another  state ;  be- 
tween citizens  of  the  same  state  claiming  land  undei 
grants  from  different  states ;  and  to  controversies  be- 
tween citizens  of  the  United  States  and  for eig7i  states y 
citizens,  or  subjects.  As  it  stood  originally,  the  judi- 
cial power  of  the  United  States  extended  to  suits 
prosecuted  against  an  individual  state  by  a  citizen  of 
another  state  of  the  Union,  or  by  citizens  or  subjects 
of  any  foreign  state.  The  states,  however,  were  not 
willing  to  be  arraigned  as  defendants  before  the  Fed- 
eral Courts  at  the  instance  of  private  persons  ;  and 
it  was  subsequently  declared,  by  an  amendment  to 
the  Constitution,  that  the  judicial  power  should  not 
be  construed  to  extend  to  any  suit  of  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  another  state,  or  by  citizens  or 
subjects  of  any  foreign  state. 

The  propriety  of  vesting  the  jurisdiction,  as  it  now 
stands,  in  thejudicial  department  of  the  United  States, 
seems  to  result  necessarily  from  their  union  as  one 
nation  ;  and  its  exercise  by  the  national  tribunals 
may  be  considered  requisite  to  the  existence  of  the 
Federal  Government.  It  may  be  profitable,  how- 
ever, at  the  present  moment,  to  view  this  branch  of 
our  snbject  somewhat  in  detail,  in  particular  refer- 
ence to  questions  arising  under  the  Constitution  and 
laws  of  the  United  States. 

The  fitness  of  extending  the  jurisdiction  of  the 
Federal  Courts  to  cases  arising  under  the  Constitu- 
tion, in  contradistinction  to  those  arising  under  the 
laics  passed  in  virtue  of  its  authority,  results  from 
the  obvious  necessity  of  a  constitutional  method  of 
giving  efficacy  to  those  provisions  of  the  compact 
which  neither  require  nor  admit  of  an  act  on  the  part 


CONSTITUTIONAL  JURISPRUDENCE.     119 

of  the  National  Legislature  to  sanction  or  enforce 
ihem.  What,  for  instance,  would  avail  the  restric- 
tions on  the  states,  without  some  constitutional  mode 
of  compelling  their  observance  ?  The  individual 
states  are  prohibited  from  the  performance  of  a  va- 
riety of  acts,  some  of  which  are  incompatible  with 
the  objects  and  interests  of  the  Union,  and  others 
with  the  principles  of  good  policy.  The  imposition 
by  state  authority  of  duties  on  imported  articles  is 
an  example  of  the  first,  and  the  emission  of  bills  of 
credit  a  specimen  of  the  second.  Now,  in  the  face 
of  the  experience  afforded  under  the  former  confed- 
eration, it  will  hardly  be  pretended  that  such  prohi- 
bitions would  be  scrupulously  regarded  without  some 
effectual  power  in  the  government  to  restrain  or  cor- 
rect their  violation.  The  power  must  either  be  a  di- 
rect negative  on  the  state  laws,  vested  in  the  execu- 
tive power  of  the  Union  (which,  indeed,  was  propo- 
sed as  the  alternative  in  the  General  Convention),  or 
an  authority  in  the  Federal  Courts  to  overrule  such 
laws  of  the  several  states  as  contravene  the  National 
Constitution.  The  latter  expedient  was  preferred 
by  the  Convention,  and  was  unquestionably  most  ac- 
ceptable to  their  constituents ;  and  there  is  no  third 
course  that  can  be  imagined,  short  of  the  doctrine  of 
nullification^  which  assumes  a  power  in  any  one  state 
to  suspend,  if  not  to  subvert,  within  its  own  limits, 
the  acts  and  operations  of  every  department  of  the 
Federal  Government,  though  every  other  member  of 
the  Union  admit  their  validity  and  submit  to  theii 
authority. 

As  to  extending  the  jurisdiction  of  the  national 
courts  to  all  cases  arising  under  the  laws  of  the 
United  States,  it  seems  impossible,  by  any  argument 
or  illustration,  to  render  its  propriety  clearer  than  it 
appears  from  the  mere  statement  of  the  question. 


120  LECTURES    ON 

If  there  be  such  things  as  political  axioms  or  truths 
in  the  science  of  government  too  plain  to  be  dis- 
puted, the  principle  already  stated,  that  "  the  judicial 
power  must  be  coextensive  with  the  power  of  legis- 
lation," must  certainly  be  one  of  them  ;  and  in  gov- 
f-rnments  formed  from  the  union  of  the  people  of  so 
many  separate  and  independent  states,  as  well  as  of 
those  states  themselves,  as  one  nation,  organized  un- 
cjer  a  written  compact  of  government,  the  mere  ne- 
(;essity  of  uniformity  in  the  interpretation  of  the 
national  laws  is  suthcient  to  decide  the  question. 
If  the  courts  of  the  United  States  have  not  this  para- 
mount jurisdiction,  it  must  remain  without  control  in 
the  tribunals  of  the  states  ;  and  six-and-twenty  inde- 
pendent judicatures,  with  final  jurisdiction  over  the 
same  kind  of  causes,  arising  under  the  same  laws, 
would  present  a  monstrous  anomaly  in  judicial  or- 
ganization and  procedure,  from  which  nothing  but 
contradiction  and  confusion  could  ensue.  The  peo- 
ple of  the  United  States  have  declared  that  the  Con- 
stitution and  the  laws,  and  all  treaties  made  in  pur- 
suance of  it,  shall  be  the  supreme  law  of  the  land ; 
and  that  the  judges  in  every  state  shall  be  bound  by 
it,  '*  anything  in  the  constitution  and  laws  of  any  state 
to  the  contrary  notivithstanding.^^  Congress,  no  more 
than  the  state  legislatures,  have  power  to  pass  laws 
repugnant  to  the  Federal  Constitution  ;  because  that 
(Constitution  is  not  only  the  2mramou7it,  but  also  the 
ffindamental  law ;  and  those  laws  only  which  are 
passed  in  pursuance  of  the  Constitution  are  declared 
to  be  supreme,  in  reference  to  the  constitutions  and 
laws  of  the  states.  Every  act,  therefore,  of  Congress, 
as  well  as  of  the  state  legislatures,  and  every  part  of 
the  constitution  of  any  state,  which  is  repugnant  to 
the  Constitution  of  the  United  States,  is  necessarily 
void.     This  we  must  re^rard  as  a  clear  and  setiled 


CONSTITUTIONAL  JURISPRUDENCE.     121 

principle  of  our  national  jurisprudence,  unalterable 
by  any  authority  but  that  from  which  the  national 
compact  is  derived,  and  not  liable  to  change  even  by 
that  authority,  except  in  the  mode  prescribed  by  the 
instrument  itself.  Now,  as  the  judicial  power  of  the 
Union  is  declared  to  extend  to  all  cases  arising  un- 
der the  Constitution,  to  that  power  it  must  neces- 
sarily belong,  in  cases  wherein  the  question  is  ju- 
dicially presented  for  decision,  to  determine  what  is 
the  supreme  law  ;  and  the  judgment  of  the  Supreme 
Court  must  be  final  and  conclusive,  because  the  Con- 
stitution invests  that  tribunal  with  the  power  to  de- 
cide, and  gives  no  appeal  from  its  decision.  But  if 
an  act  of  Congress  admit  of  two  interpretations,  one 
of  which  brings  it  within,  and  t^e  other  presses  it 
beyond  the  constitutional  authority  of  Congress,  it  is 
the  duty  of  the  courts  to  adopt  the  former  construction, 
because  a  presumption  ought  never  to  be  indulged 
that  Congress  meant  to  exercise  or  usurp  any  uncon- 
stitutional authority. 

Some  perplexity  exists  in  regard  to  the  right  of 
courts  of  justice  to  pronounce  legislative  acts  void,  on 
the  ground  of  their  unconstitutionality,  from  apprehen- 
sion that  the  doctrine  would  establish  a  superiority  of 
the  judicial  over  the  legislative  power.  As  the  sub- 
ject is  of  great  practical  importance,  a  rapid  survey 
of  the  grounds  on  which  it  was  defended  by  our  most 
eminent  statesmen  cannot  be  disadvantageous  ;  es- 
pecially as  it  exhibits  a  contemporaneous  construe 
tion  of  the  highest  authority  of  that  part  of  the  Cou 
stitution.  "  There  is  no  position,"  say  the  illustri- 
ous authors  of  "  The  Federalist,"  "  which  depends  on 
clearer  principles,  than  that  every  act  of  a  delegated 
authority,  contrary  to  the  commission  under  which  it 
is  exercised,  is  void."  No  legislative  act,  therefore 
contrary  to  the  Constitution,  which  is  the  comml* 
K 


122  LECTURES    ON 

sion  by  which  every  department  of  the  governniert 
equally  derives  its  authority  from  the  people,  can  be 
valid.  To  deny  this  would  be  to  affirm  that  the 
deputy  is  superior  to  his  principal ;  that  the  servant 
is  above  his  master ;  that  the  representatives  of  the 
people  are  greater  than  the  people  themselves ;  and 
that  persons  acting  in  virtue  of  a  delegated  authority 
not  only  assume  what  their  powers  do  not  authorize, 
but  what  they  expressly  forbid.  If  it  be  alleged  that 
legislative  bodies  are  themselves  the  constitutional 
judges  of  their  own  powers,  and  that  their  own  con^ 
struction  of  them  is  conclusive  upon  the  other  depart- 
ments, it  may  be  answered,  that  this  cannot  be  the 
natural  presumption  where  it  is  not  to  be  collected 
from  the  particular  provisions  of  the  fundamental 
compact.  Without  such  express  provision,  it  is  not 
to  be  intended  that  the  Constitution  meant  to  enable 
the  representatives  of  the  people  to  substitute  their 
own  will  in  the  place  of  that  of  their  constituents : 
it  is  far  more  rational  to  conclude  that  the  courts  of 
justice  were  only  intended  to  represent  the  sov- 
ereignty of  the  people,  in  a  co-ordinate  and  independ- 
ent department ;  and,  in  that  capacity,  to  act  as  an 
intermediate  body  between  the  people  and  the  Legis- 
lature, in  order,  among  other  things,  to  keep  the  lat- 
ter within  the  limits  assigned  to  its  authority. 

The  interpretation  of  the  laws  is  the  proper  and 
peculiar  province  of  the  courts ;  and  the  Constitu- 
tion is,  in  fact,  and  must  be  regarded  by  them,  as  a 
fundamental  law.  It  must  therefore  belong  to  them 
to  ascertain  its  meaning,  as  well  as  the  meaning  of 
any  particular  act  proceeding  from  the  legislative 
body.  If  there  should  happen  to  be  an  irreconcila- 
ble variance  between  the  two,  that  which  has  the 
superior  obligation  ought,  of  course,  to  be  preferred : 
in  other  words,  the  Constitution  ought  to  be  preferred 


CONSTITUTIONAL   JURISPRUDENCE.  123 

lO  llie  statute ;  the  intention  of  the  people  to  the  in- 
tention of  their  agents.  Nor  does  this  conclusion, 
by  any  means,  suppose  a  superiority  of  the  judicial 
to  the  legislative  power.  It  only  presumes  that  the 
power  of  the  people  is  superior  to  both ;  and  where 
the  will  of  the  Legislature,  declared  in  the  statute- 
book,  stands  opposed  to  the  will  of  the  people,  de- 
clared in  the  Constitution,  the  judges  are  to  be 
governed  by  the  latter  rather  than  the  former,  and 
ought  to  regulate  their  decisions  by  that  fundament- 
al law,  over  which  the  Legislature  has  no  control, 
rather  than  by  those  which  it  may  at  any  time 
alter  or  repeal,  and  which  derive  their  validity  and 
effect  from  the  Constitution  alone.  It  can  be  of  no 
weight  to  say  that  the  courts  of  justice,  under  the 
pretence  of  a  repugnancy  between  a  law  and  the 
Constitution,  may  substitute  their  own  pleasure  in 
the  stead  of  the  constitutional  intentions  of  the  Le- 
gislature, for  this  supposition  not  only  involves  a  pe- 
tition of  the  question,  but  might  as  well  happen  in 
the  case  of  two  contradictory  statutes,  or  in  every 
separate  adjudication  upon  the  same  statute.  The 
courts  are  bound  to  declare  the  meaning  of  the  law  ; 
and  if  they  should  be  disposed  to  exerci^^e  will  in- 
stead of  judgment,  the  consequence  in  the  one  case,  as 
well  as  the  other,  would  be  the  substitution  of  their 
own  pleasure  in  lieu  of  the  pleasure  of  the  Legis- 
lature. The  objection,  therefore,  if  it  proved  any- 
thing, would  prove  that  there  should  be  no  judges 
distinct  from  the  legislative  body.  But  the  danger 
of  intrusting  judicial  and  legislative  powers  in  the 
same  hands  has  already  been  pointed  out ;  and  I 
have  shown,  I  think,  that  the  object  of  their  separa- 
tion was  not  only  to  create  a  distinct  and  independ- 
ent body  to  expound  the  laws,  but  also  to  erect  a  bul- 
wark to  defend  a  constitution,  limited  in  its  powers, 


124  LECTURES    ON 

against  legislative  encroachments  or  executi\e  usur* 
pation,  while  it  was  itself  restrained  within  its  proper 
bounds  by  corresponding  checks,  in  the  hands  of  the 
other  departments,  or  arising  from  its  own  constitu- 
tion. 

The  design  of  this  separation  of  the  judicial  power 
from  the  other  departments,  and  of  the  precautions 
for  maintaining  its  independence,  was,  moreover,  to 
afford  protection  to  the  Federal  Government,  in  the 
exercise  of  its  acknowledged  powers,  against  the  in- 
roads or  influence  of  the  state  sovereignties  ;  and  all 
the  requirements  and  illustrations  adduced  in  support 
of  the  right  and  duty  of  the  Federal  Courts,  in  the 
ordinary  administration  of  their  authority,  to  declare 
void  those  acts  of  Congress  which,  in  their  judgment, 
are  repugnant  to  the  Constitution,  apply  with  equal,  if 
not  greater  force,  to  establish  a  more  extensive  pow- 
er in  regard  to  the  acts  and  proceedings  of  the  state 
governments.  We  have  seen  that  the  people  of  the 
several  states,  in  their  adoption  of  the  Federal  Con- 
stitution, acknowledged  that  constitution,  and  the 
laws  and  treaties  made  in  pursuance  of  its  authority, 
to  be  the  supreme  law  of  the  land,  and  as  of  para- 
mount obligation  to  the  constitutions ,  as  well  as  the 
laws,  of  any  of  the  states.  So  far,  then,  from  admit- 
ting each  party  to  the  national  compact  to  interpret 
that  instrument  for  itself,  those  very  parties,  by  de- 
claring that  the  judicial  power  of  the  Union  should 
extend  to  all  cases  arising  under  it,  vested  in  tho 
proper  department  authority  to  determine  its  con- 
struction, in  every  case  in  which  such  a.  question  should 
judicially  arise,  whether  directly  between  the  parties  to 
the  suit,  or  collaterally  between  the  parties  to  the  "^o- 
cial  contract. ^^ 


CONSTITUTIONAL   JURISPRt'DENCE.  125 


LECTURE  VI. 

OF  THE  DISTRIBUTION  OF  THE  JUDICIAL  POWER  AMONG 
THE    FEDERAL    COURTS. 

We  now  proceed  to  ascertain  in  what  man- 
ner the  Federal  jurisdiction  has  been  distributed 
among  the  several  courts,  either  by  the  Constitu- 
tion, or  the  acts  of  Congress,  carrying  the  sys- 
tem into  complete  effect :  in  reference  to  which 
it  may  be  observed,  generally,  that  the  disposition 
of  this  power,  except  in  a  few  specified  cases,  is 
left  to  Congress;  and  the  courts  cannot  exercise 
jurisdiction  in  every  case  to  which  the  judicial 
power  extends  without  the  intervention  of  Con- 
gress ;  who,  moreover,  are  not  bound  to  enlarge 
the  jurisdiction  of  the  respective  tribunals  to  ev- 
ery subject  which  the  Constitution  warrants,  al- 
though the  whole  judicial  power  ought  at  all  times 
to  be  vested  in  some  of  the  courts  created  under 
the  authority  of  the  United  States. 

It  is  laid  down  as  a  rule,  in  the  eighty-second 
number  of  The  Federalist,"  that  the  state  courts 
retained  all  pre-existing  authority,  or  the  juris- 
diction which  they  had  before  the  adoption  of 
the  Constitution  ;  except  where  it  was  taken  away 
either  by  an  exclusive  authority  granted  in  ex- 
press terms  to  the  Union,  or  in  a  case  where  a 
particular  authority  is  granted  to  the  Union,  and 
the  exercise  of  a  like  authority  prohibited  to  the 
states,  or  in  the  case  where  an  authority  is  grant- 
ed to  the  Union,  with  which  a  similar  authority 
in  the  states  would  be  incompatible.  A  concur- 
rent jurisdiction  in  the  state  courts  was  admitted 


126  LECTURES    ON 

h\  all  such  cases;  but  this  doctrine  is  applicable 
only  to  those  descriptions  of  causes  of  which  the 
state  courts  had  previous  cognizance,  and  not  to 
cases  growing  out  of  the  new  Constitution.  Con- 
gress, in  the  course  of  its  legislation,  may  com- 
mit the  decision  of  cases  arising  under  its  own 
laws  to  the  Federal  Courts  exclusively ;  but  un- 
less the  state  courts  were  expressly  excluded  by 
the  act  of  Congress,  they  would,  of  course,  take 
concurrent  jurisdiction  of  the  causes  to  which 
those  acts  may  give  birth,  under  the  qualifications 
mentioned ;  and  before  the  adoption  of  the  Consti- 
tution, it  was  asserted  and  maintained  by  its  ablest 
commentators,  that  in  all  cases  of  concurrent  ju- 
risdiction, an  appeal  would,  when  it  was  ratified, 
lie  to  the  Supreme  Court  of  the  United  States  ;  and 
that,  Avithout  such  appeal,  the  concurrent  jurisdic- 
tion of  the  state  courts  in  matters  of  national  con- 
cern would  be  inadmissible,  because,  in  that  case, 
it  would  be  inconsistent  with  the  authority  and  ef- 
ficiency of  the  National  Government.  The  prac- 
tice of  that  government  has  been  conformable  to 
this  doctrine,  and  the  exclusive  and  concurrent 
jurisdiction  conferred  upon  the  Federal  Courts 
by  the  acts  of  Congress  are  clearly  distinguish- 
ed and  marked  in  correspondence  with  it.  It  is, 
nevertheless,  manifest  that  the  judicial  power  of 
the  United  States  may  in  all  cases  which  it  com- 
prehends be  made  exclusive  of  all  state  authority, 
at  the  election  of  Congress.  Hence  the  concur- 
rent jurisdiction  of  the  state  tribunals  depends 
altogether  upon  its  pleasure,  and  w^henever  Con- 
gress thinks  proper,it  may  be  revoked  and  extin- 
guished in  every  case  which  can  constitutionally 
be  made  cognizable  in  the  Federal  Courts ;  but 
without  an  express  provision  to  the  contrary,  the 


CONSTITUTIONAL  JURISPRUDENCE.     127 

state  courts  retain  a  concurrent  jurisdiction  in 
all  jases  of  which,  previous  to  the  Federal  Con- 
stitution, they  possessed  the  jurisdiction.  The 
state  courts,  moreover,  may,  in  the  exercise  of 
their  ordinary  original  jurisdiction,  take  cogni- 
zsiuc e,  incide7it ally ,  of  cases  arising  under  the  Con- 
stitution, laws,  and  treaties  of  the  United  States ; 
yet  to  all  these  cases  the  judicial  power  of  the 
Union  extends  by  means  of  its  appellate  jurisdic- 
tion. In  order  to  ascertain  to  what  extent,  and 
in  what  manner,  the  Federal  jurisdiction,  both 
original  and  appellate^  has  been  disposed  of,  ei- 
ther by  the  Constitution  itself,  or  by  act  of  Con- 
gress, we  must  review,  as  we  proposed,  the  vari- 
ous courts  established  by  the  one  or  ordained 
by  the  other. 

I.  The  Supreme  Court  of  the  United  States^  although 
created  by  the  Constitution,  received  its  organi- 
zation from  the  Judiciary  Act  of  1789,  and  the 
several  supplementary  laws  which  have  at  differ- 
ent times  subsequently  been  passed  in  addition 
thereto.  The  Constitution  had  merely  declared 
that  there  should  be  a  Supreme  Court^  with  cer- 
tain original  and  appellate  powers  ;  it  is  merely  to 
be  implied  from  that  instrument  that  the  chief-jus- 
tice should  preside  in  it,  with  one  or  more  judges 
to  be  associated  with  him  ;  but  by  the  existing 
acts  of  Congress,  it  consists  of  the  chief-}ustice 
and  eight  associate  judges,  any  five  of  whom  con- 
stitute a  quorum.  It  holds  one  term  annually  at 
the  seat  of  the  General  Government,  commen- 
cing on  the  first  Monday  in  January;  and  al- 
though the  presence  of  five  judges  is  required 
for  the  general  business  of  the  court,  yet  any 
one  or  more  of  them  may  make  all  necessary  or- 
de^fs  in  a  suit,  preparatory  tc*  the  hearing  or  tri- 


128  LECTURES    ON 

al ;  and  it  is  made  the  special  duty  of  the  chief 
justice  to  attend  at  Washington  on  the  first  Mon 
day  in  August  annually  for  the  same  purpose. 

The  Supreme  Court  has,  by  the  Constitution, 
exclusive  original  jurisdiction  of  all  controversies 
of  a  civil  nature,  where  a  state  can  be  made  a 
party,  except  in  suits  by  a  state  agamst  one  or 
more  of  its  citizens,  or  against  citizens  of  other 
states,  or  against  aliens  ;  in  which  cases  it  has  ori- 
ginal^ hut  not  exclusive  jurisdiction.  It  has  also, 
exclusively^  such  jurisdiction  of  suits  or  proceed- 
ings against  ambassadors,  or  other  public  minis- 
ters, or  their  domestics,  as  a  court  of  law  can  ex 
ercise  consistently  with  the  law  of  nations,  and 
original^  but  not  exclusive  jurisdiction  of  all  suits 
Z>rowgA^  6y  ambassadors,  or  other  public  ministers, 
or  in  which  a  consul  or  vice-consul  may  be  a 
party. 

The  Constitution  also  confers  on  it  an  appellate 
jurisdiction,  under  such  exceptions  or  regulations  as 
Congress  may  prescribe  ;  and  by  the  first  judiciary 
act  it  is  declared  that  appeals  shall  lie  to  this  court 
from  the  Circuit  Courts  of  the  United  States,  and,  in 
certain  cases,  from  the  highest  courts  of  the  several 
states.  Final  judgments  and  decrees  in  civil  actions, 
and  suits  in  equity  in  the  Circuit  Courts,  where 
brought  there  by  original  process,  or  removed  thither 
from  tlie  state  courts,  or  by  appeal  from  the  District 
Courts  of  the  United  States,  where  the  matter  in  dis- 
pute exceeds  a  specified  sum,  may  be  re-examined, 
and  reversed  or  afllrmed,  in  the  Supreme  Court; 
and  final  judgments  and  decrees  of  the  Circuit 
Courts,  in  cases  of  admiralty  or  maritime  jurisdic- 
tion, and  in  questions  of  prize  or  no  prize,  whore  the 
matter  in  dispute  exceeds  the  same  amount,  may  be 
reviewed  on  appeal  in  the  Supreme  Court;  and  in 


CONSTITUTION-^L    JURISPRUDENCE.  129 

these  cases,  new  evidence  is  admitted  on  the  appeals 
conformably  with  the  general  doctrines  and  usages 
of  appellate  courts  of  admiralty.  So,  also,  a  final 
judgment  or  decree  of  the  highest  court  of  law  or 
equity  in  a  state  may  be  brought  up  on  the  allega- 
tion of  error  in  point  of  law  to  the  Supreme  Court  of 
the  United  States ;  if  the  validity  of  a  treaty,  of  an 
act  of  Congress,  or  of  an  authority  exercised  under 
the  Government  of  the  United  States,  was  drawn  in 
question  in  the  state  court,  and  the  decision  was 
against  that  validity ;  or  if  the  validity  of  any  state 
'.aw  or  authority  was  drawn  in  question,  on  the 
ground  of  its  being  repugnant  to  the  Constitution, 
treaties,  and  laws  of  the  United  States,  and  the  de- 
cision was  in  facoiLV  of  its  validity  ;  or  if  the  con- 
struction of  any  clause  of  the  Constitution,  or  of  a 
treaty,  or  of  a  statute  of  the  United  States,  or  of  a 
commission  held  under  them,  Avas  drawn  in  question, 
and  the  decision  was  against  the  title,  right,  privilege, 
or  exemption  specially  claimed  under  the  authority 
of  the  Union.  Upon  these  appeals  from  the  decision 
of  a  state  court,  however,  no  other  error  can  be  as- 
signed or  regarded  in  the  Supreme  Court,  than  such 
as  appears  on  the  face  of  the  record,  and  immediate- 
ly respects  the  question  of  the  validity  or  construc- 
tion of  the  Constitution,  treaties,  statutes,  commis- 
sions, or  authority  in  dispute. 

The  original  jurisdiction  of  the  Supreme  Court,  or 
that  cognizance  which  it  takes  of  causes  in  their  in- 
itiatory proceedings,  is,  as  you  may  have  perceived, 
of  a  very  limited  character.  It  is  confined  by  the 
Constitution  to  those  cases  which  affect  ambassadors, 
and  other  public  ministers  and  consuls,  and  those  in 
which  a  state  is  a  party  ;  and  it  has  been  made  a 
question  whether  the  original  jurisdiction  was  in- 
tended to  be  exclusive-  of  the  inferior  courts  of  the 
I. 


13v)  LECTURES    ON 

United  States,  or  of  the  state  tribunals.  The  act  ol 
1789  seems  to  have  considered  it  competent  for 
Congress  to  vest  concurrent  jmisdiction  in  the  above 
specified  cases  in  other  courts  ;  for  it  gives  a  con- 
current jurisdiction  in  some  of  them  to  the  Circuit 
Courts  ;  and  it  has  been  held*  that  the  word  original 
was  not  here  to  be  taken  to  imply  exclusive  cogni- 
zance of  the  cases  enumerated.  But  an  opinion  of 
the  Supreme  Court,  in  another  case,  goes  far  towards 
establishing  the  principle  of  exclusive  jurisdiction  in 
that  court  in  all  these  cases  of  original  jurisdiction  ; 
although  this  last  decision  was  subsequently  consid- 
ered as  shaking  the  first,  yet  the  question  was  after- 
ward left  in  doubt  by  the  Supreme  Court,  and  a  de- 
cision upon  it  purposely  waived.! 

Admitting,  then,  that  this  original  jurisdiction  of  the 
Supreme  Court  can  be  shared  by  other  courts  in  the 
discretion  of  Congress,  it  has  been  decided  that  it  can- 
not be  enlarged  ;  and  that  the  Supreme  Court  cannot 
be  invested  with  an  original  jurisdiction,  by  act  of  Con- 
gress, in  cases  other  than  those  described  by  the  Con- 
stitution. Congress  has  no  authority  to  give  it  ori- 
ginal jurisdiction,  where  the  Constitution  has  declared 
that  the  jurisdiction  shall  be  appellate  ;  nor  appellate, 
where  Congress  has  declared  that  it  shall  be  origi- 
nal.J  The  Constitution  gives  to  the  Supreme  Court 
original  jurisdiction  in  those  cases  in  which  a  state 
shall  be  a  party,  and  the  Supreme  Court  has  laid 
down  as  a  rule§  that  it  must  be  a  case  in  which  a  state 
is  either  nominally  or  suhstmitially  the  party,  and  thai 
it  is  not  sufficient  that  the  state  may  be  consequen- 
tially affected.  And  although  the  judicial  power  of 
the  Union  extends  to  '*  controversies  between  a  state 

*  United  States  vs.  Ravaree,  2  Dall.,  297. 
t  Marbury  vs.  Madison,  1  Cranch,  137.    5  Sarjent  and  Rawle, 
645     11  Wheaton,  4C7.  %  1  Cranch,  137.  ^  3  Dal)..  411. 


CONSTITUTIONAL   JURISPRUDENCE.  131 

and  ft>feign  states,  citizens,  or  subjects,  and  the  Con- 
stitution gives  to  the  Supreme  Court  original  juris- 
diction in  all  cases  in  which  a  state  shall  bo  a  party, 
yet  it  was  held,  in  the  celebrated  case  of  the  Chero- 
kee Indians,*  that  theij  were  not  a  "  foreign  nation" 
within  the  meaning  of  the  Constitution.  They  were, 
indeed,  considered  to  be  a  political  community  or 
.state,  and  had  uniformly  been  treated  as  such  since 
the  first  settlement  of  the  country.  The  numerous 
treaties  with  them  by  the  United  States  recognises 
them  as  a  people  capable  of  maintaining  the  relations 
of  peace  and  war  ;  of  being  responsible  in  their  po- 
litical character  for  any  violation  of  their  engage- 
ments, or  any  aggressions  upon  our  citizens  by  any 
individual  of  their  tribe.  Laws  have  been  enacted  in 
the  spirit  of  those  treaties,  and  the  courts  are  held 
to  be  bound  by  those  acts  of  the  government,  which 
have  thus  plainly  recognised  this  nation  of  Indians  as 
a  state. 

The  condition  of  the  Indian  tribes,  in  regard  to 
their  connexion  with  the  United  States,  bears  little  re- 
semblance to  the  relations  between  any  other  two  peo- 
ple in  the  world.  In  general,  nations  not  owing  a  com  - 
mon  allegiance  are  foreign  to  each  other.  But  the 
relation  of  the  Indians  to  the  government  of  the  Uni- 
ted States  is  marked  by  peculiar  and  cardinal  distinc- 
tions. The  Cherokees  were  acknowledged  to  have 
an  unquestionable,  and,  until  that  controversy  arose, 
an  unquestioned  right  to  the  lands  they  occupied,  until 
that  right  were  extinguished  by  a  voluntary  cession 
to  the  Federal  Government.  It  was,  nevertheless, 
doubted  whether  they,  or  any  of  the  tribes  residing 
within  the  acknowledged  boundaries  of  the  United 
States,  could  with  accuracy  be  denominated  foreign 

*  5  Peters,  1. 


13'-^  LECTURES    ON 

States.  They  may  more  correctly  be  called  domes- 
tic, dependant  nations,  occupying  a  territory  over 
which  our  government  assert  a  right  independent  of 
their  will,  and  which  must  take  effect  in  point  of 
possession  when  their  right  of  possession  ceases. 
In  the  mean  time,  their  relation  to  the  United  States 
resembles  that  of  a  ward  to  his  guardian  :  they 
look  to  the  Federal  Government  for  protection,  rely 
on  its  kindness,  and  appeal  to  its  sympathies  for  the 
relief  of  their  wants. 

Under  these  circumstances,  the  Cherokees  souglit 
to  restrain  the  State  of  Georgia  (within  whose  terri- 
torial limits  their  lands  were  situate)  from  the  forci- 
ble exercise  of  legislative  power  over  them,  claim- 
ing their  independence  as  a  separate  and  neighbour- 
ing people  ;  their  right  to  which  the  state  denied. 
The  court  held  its  power  to  interpose  for  their  pro- 
tection to  be,  at  least,  doubtful ;  but  intimated  that 
the  mere  question  of  right  might  perhaps  be  settled 
in  a  proper  case  with  proper  parties.  But  it  was 
asked  on  that  occasion  to  do  more  than  decide  on 
the  title  :  it  was  called  on  to  control  the  Legislature 
of  Georgia,  and  to  restrain  the  exertion  of  its  phys- 
ical force  ;  and  the  propriety  of  such  an  interposition 
might  well  be  questioned,  as  it  savoured  too  much  of 
the  exercise  of  political  power  to  be  within  the  prov-. 
ince  of  the  judicial  department ;  and  it  refused  to 
interfere.  Thus  much  for  the  original  jurisdiction 
of  the  Supreme  Court.  We  now  proceed  to  that 
which  is  appellate. 

It  is  the  appellate  power  of  the  Supreme  Court 
which  gives  to  it  most  of  its  dignity  and  efficacy, 
and  renders  it  a  constant  object  of  solicitude  and  at- 
tention to  the  government  and  people  of  the  several 
states.  We  have  seen  that,  by  the  act  of  Congress, 
a  fmal  judgment  or  decree  of  the  highest  court  of  law 


CONSTITUTIONAL   JURISPRUDENCE.  133 

or  equity  in  a  state  may,  in  certain  cases,  under  various 
circumstances,  be  reviewed,  and  reversed  or  affirmed, 
in  the  Supreme  Court  of  the  United  States.  In  cases 
of  reversal,  the  cause  may  be  remanded  to  the  State 
Court  for  final  judgment,  to  be  rendered  according  to 
the  opinion  of  the  supreme  Federal  tribunal,  or  that 
court  may,  at  its  discretion,  if  the  cause  have  once 
before  been  remanded,  proceed  itself  to  a  final  decis- 
ion and  av^^ard  execution.  Under  this  authority,  it  has 
been  declared  by  the  Supreme  Court,  that  if  the  high- 
est court  in  a  state  reverse  the  judgment  of  a  subordi- 
nate court,  and  on  appeal  the  judgment  of  the  highest 
court  be,  in  its  turn,  reversed  by  the  Supreme  Court  or 
the  United  States,  it  becomes  a  mere  nullity  ;  and  the 
mandate  for  execution  may  issue  xlirectly  from  the  Su- 
preme Court  to  the  inferior  state  court.*  But  in  a 
subsequent  case,  a  writ  of  error  from  the  Supreme 
Court  of  the  United  States  was  directed  to  the  Court 
of  Appeals  in  Virginia,  being  the  highest  court  in 
that  state,  upon  a  judgment  rendered  on  appeal  from 
an  inferior  state  court  against  a  right  claimed  under 
the  treaty  with  Great  Britain,  and  the  judgment  of 
the  Court  of  Appeals  was  reversed  by  the  Supreme 
Court  ;  the  cause  was  remanded,  and  the  Virginia 
Court  of  Appeals  was  required  to  cause  the  original 
judgment,  which  had  been  reversed  in  that  court,  to  be 
carried  into  due  execution.  The  Court  of  Appeals, 
when  the  case  came  back  to  them,  resolved  that  the 
appellate  power  of  the  Supreme  Court  did  not  ex- 
tend to  the  state  courts  ;  that  the  act  of  Congress  was 
not  warranted  by  the  Constitution  ;  and  that  the 
proceedings  in  the  Supreme  Court  were  invalid  in 
relation  to  the  Court  of  Appeals  ;  which,  consequent- 
]f^  declined  obedience  to  the  mandate  of  the  former. f 

*  eiarke  vs.  Sherwood,  3  DalL,  341. 
t  Fairfax  vs.  Hunter  7  Cranch,  C03. 


134  LECTURES    ON 

A  new  writ  of  error  was  awarded  upon  this  refusal, 
and  the  case  came  up  again  before  the  Supreme 
Court,  as  a  case  in  which  the  court  below  drew  in 
question,  and  denied  the  validity  of  the  act  authori- 
zing an  appeal  from  a  state  court. 

In  the  luminous  opinion  delivered  on  that  occasion 
by  the  venerable  and  learned  Chief-justice  Marshall, 
he  observed,  that  the  judicial  power  of  the  United 
States  had  been  declared  by  the  Constitution  to  ex- 
tend to  all  cases  arising  under  treaties  made  under 
the  authority  of  the  United  States,  which  was  an  ab- 
solute grant  of  jurisdiction  in  that  case  ;  and  that  it 
was  competent  for  'the  people  to  invest  the  General 
Government  with  that,  or  any  other  powers  which 
they  might  deem  necessary  and  proper,  as  well  as  to 
prohibit  the  states  from  the  exercise  of  any  powers 
which,  in  their  judgment,  were  incompatible  with  the 
objects  of  the  general  compact.  Congress  were  bound 
by  the  injunctions  of  the  Constitution  to  create  inferior 
courts,  in  which  to  vest  all  that  judicial  jurisdiction 
which  was  exclusively  vested  in  the  United  States, 
and  of  which  the  Supreme  Court  cannot  take  any 
other  than  appellate  cognizance.  The  whole  judicial 
power  must  at  all  times  be  vested,  either  in  an  origi- 
nal or  appellate  form,  in  some  courts  created  under 
the  authority  of  the  United  States.  The  grant  of  the 
judicial  power  was  thus  declared  to  be  absolute,  and 
it  was  held  to  be  imperative  upon  Congress  to  pro- 
vide for  the  appellate  jurisdiction  of  the  Federal 
Courts  in  all  cases  in  which  the  judicial  power  was 
granted  exclusively  to  the  United  States,  by  the  Con- 
stitution, and  not  already  given,  by  way  of  original 
jurisdiction,  to  the  Supreme  Court.  This  eminent 
judge,  in  his  examination  of  the  judicial  power,  upon 
which  he  then  entered,  took  a  distinction  between 
\he  two  classes  of  enumerated  cases,  and  held  that 


CONSTITUTIONAL     J  UlllSPKUDENCE.  135 

the  Constitution  intended  that  the  judicial  power, 
either  in  an  original  or  appellate  form,  should  extend 
absohilely  to  all  cases  in  law  or  equity  arising  under 
the  Constitution  and  laws  of  the  United  States,  and 
the  treaties  made  under  its  authority,  to  all  cases  af- 
f  cting  ambassadors,  other  public  ministers,  and  con- 
suls, and  to  all  cases  of  admiralty  and  maritime  ju- 
risdiction, because  those  cases  were  of  vital  impor 
tance  to  the  sovereignty  of  the  Union,  entered  into 
the  public  policy,  and  affected  the  national  rights, 
and  the  law  and  comity  of  nations.  The  original  or 
appellate  jurisdiction  ought,  therefore,  in  these  cases, 
to  be  commensurate  with  the  mischiefs  and  the  poli- 
cy in  view.  But  in  respect  to  another  class  of  cases, 
it  was  held  that  the  Constitution  had  designedly 
dropped  the  word  all,  so  as  not  absolutely  to  extend 
the  jurisdiction  of  the  Federal  judiciary  to  all  contro- 
versies, but  merely  to  controversies  in  which  the 
United  States  were  a  party,  or  between  two  or  more 
states,  or  between  citizens  of  different  states,  &c., 
leaving  it  to  Congress  to  qualify  the  jurisdiction, 
original  or  appellate,  in  such  manner  as  public  policy 
might  dictate. 

But  whatever  weight  is  due  to  this  distinction,  it 
is  manifest  that  the  judicial  power  was  unavoidably, 
in  some  instances,  exclusive  of  all  state  authority 
and  in  all  others  may  be  made  so  at  the  discretion  of 
Congress.  The  act  of  1789  assumed,  that  in  all  the 
cases  to  which  the  judicial  power  of  the  United  States 
oxtended.  Congress  might  rightfully  vest  exclusive 
jurisdiction  in  their  own  courts.  The  criminal  and 
the  admiralty  jurisdiction  must  be  exclusive  ;  and  it 
is  only  in  those  cases  where,  previously  to  the  Con- 
stitution, the  state  tribunals  possessed  jurisdiction  in- 
dependently of  national  authority,  that  they  can  now 
constitutionally  exercise  a  concurrent  jurisdiction 


136  LECTURES    ON 

The  appellate  jurisdiction  was  not  considered  as  lim- 
ited by  the  Constitution  to  the  Supreme  Court ;  but 
Congress  may  create  a  succession  of  inferior  tribu- 
nals, in  each  of  which  it  may  vest  appellate  as  well 
as  original  jurisdiction.  The  appellate  jurisdiction 
of  the  Supreme  Court,  in  cases  wherein  it  has  not  ori- 
gmal  jurisdiction,  is  declared  by  the  Constitution  to 
be  subject  to  such  exceptions  and  regulations  as  Con- 
gress may  prescribe.  It  remained,  therefore,  entire- 
ly in  the  discretion  of  Congress  to  provide  for  the 
exercise  of  judicial  power  in  all  the  various  forms  of 
appeal.  The  right  of  removing  a  cause  from  a  state 
court  by  a  defendant  entitled  to  try  his  right,  or  as- 
sert his  privileges  in  the  national /orwm,  is,  in  fact, 
the  exercise  of  an  appellate  jurisdiction,  as  that  pow- 
er may  exist  as  well  before  as  after  judgment,  and  is. 
not  limited  to  cases  pending  in  the  courts  of  the  Uni- 
ted States.  Had  it  been  so  limited,  it  would  neces- 
sarily have  followed  that  the  jurisdiction  of  the  Fed- 
eral must  have  been  exclusive  of  the  state  courts  in 
all  the  cases  enumerated  in  the  Constitution  ;  and, 
inasmuch  as  the  judicial  power  of  the  United  States 
embraces  all  those  cases,  the  state  courts  cannot, 
consistently  with  the  express  terms  of  the  Federal 
compact,  entertain  any  jurisdiction  in  them  without 
(he  right  of  appeal  to  the  Federal  tribunals.  For  if 
^he  state  courts  were  allowed  to  exercise  a  concur- 
rent jurisdiction  in  those  cases  free  from  such  con- 
trol, the  appellate  jurisdiction  of  the  Union  would, 
as  to  the  cases  in  question,  have  no  existence  ;  which 
would  be  contrary  to  the  manifest  intent  of  the  Fed- 
eral Constitution. 

The  appellate  power  of  the  Federal  Courts  must 
continue  to  extend  to  the  state  courts,  so  long  as  the 
latter  entertain  any  concurrent  jurisdiction  over  the 
cases  which  the    Constitution  has   decb.ired  to   fall 


CONSTITUTIONAL    JURISPRUDENCE.  137 

within  the  judicial  cognizance  of  the  United  States, 
It  is  clear  that  the  Constitution  contemplated  that 
such  cases  would  not  only  arise  in  the  state  courts 
in  the  ordinary  exercise  of  their  concurrent  jurisdic- 
tion, but  that  those  tribunals  would  incidentally  take 
cognizance  of  questions  of  which  the  courts  of  the 
United  States  have  exclusive  jurisdiction.  Inas- 
much, therefore,  as  the  judicial  power  of  the  Union 
extends  to  both  the  above  specified  classes  of  cases, 
it  follows,  as  a  necessary  consequence,  that  the  appel- 
late jurisdiction  of  the  Federal  Courts  must  and  does 
extend  to  the  state  tribunals,  and  attach  to  every  case 
within  the  Federal  judicial  power.  All  the  enumer- 
ated cases  of  Federal  cognizance  are  those  which 
touch  the  safety,  peace,  and  sovereignty  of  the  Union, 
or  in  which  it  may  be  presumed  that  state  attach- 
ments, prejudices,  jealousies,  or  interests  might 
sometimes  obstruct  or  control  the  regular  administra- 
tion of  justice.  To  all  such  cases  the  appellate 
power  is  applied  on  the  plainest  principles  of  policy 
and  wisdom  ;  and  this  is  requisite  to  fulfil  effectually 
the  great  and  beneficial  ends  of  the  Constitution  ;  and 
especially  to  give  efficacy  to  the  power  of  deci- 
ding in  all  cases  of  conflict  between  the  several 
states,  or  collision  between  powers  claimed  by  a 
state  and  those  claimed  by  the  General  Government ; 
and  especially  to  maintain  the  declared  supremacy  of 
the  C'onstitution,  laws,  and  treaties  of  the  Union  over 
the  constitution  and  laws  of  the  respective  states. 
The  existence  ofsuch  a  power  was,  moreover,  deemed 
necessary  to  preserve  uniformity  of  decision  through- 
out the  United  States  upon  all  subjects  within  the 
purview  of  the  Constitution  ;  and  to  prevent  the  mis- 
chiefs of  opposite  constructions  and  contradictory  de* 
cisions  in  the  several  states  on  these  points  of  gen- 
eral concern. 


13S  LECTURES   ON 

The  appellate  powoi  of  the  Federal  judiciary  ov^er 
the  atate  tribunals  does  not,  however,  extend  to  a 
final  judgment  in  a  state  court  on  a  question  arising 
under  the  authority  of  the  Union,  although  a  state  he 
a  party ;  because  that  jurisdiction  was  given  to  the 
Federal  Courts  m  two  classes  of  cases  ;  in  the  one, 
it  depends  on  the  character  of  the  cause,  whosoevei 
may  be  ihe  parties  ;  in  the  other,  it  depends  entirely 
on  the  character  of  the  parties,  and  then  the  subject 
of  the  controversy  is  wholly  unimportant.  In  the 
celebrated  case  of  the  Georgia  Missionaries,*  where 
the  validity,  or,  at  least,  the  construction  of  the  trea- 
ties made  by  the  United  States  with  the  Cherokee 
Indians,  was  drawn  in  question  in  the  highest  court 
of  that  state,  and  the  decision  had  been,  if  not 
*'  against  their  validity,"  against  a  "  right,  privilege, 
and  exemption  claimed  under  them ;"  and  where 
had  also  been  drawn  in  question  the  validity  of  a 
law  of  Georgia,  on  the  ground  of  its  being  "  repug- 
naxit  to  the  Constitution,  treaties,  and  laws  of  the 
United  States,"  and  the  decision  had  been  "  in  fa- 
vour of  its  validity;"  it  was  considered  by  the  Su- 
pr^.me  Court  too  clear  for  controversy,  that  the  judi- 
ciary act  of  Congress  had  given  it  the  power,  and, 
of  course,  imposed  on  it  the  duty,  of  exercising  an 
appellative  jurisdiction  in  the  case,  notivithstanding  it 
'arose  upon  a  criminal  prosecution,  in  the  state  court, 
founded  upon  an  act  of  the  State  Legislature.  The 
law  of  Georgia  was  held  to  be  repugnant  to  the 
(constitution,  laws,  and  treaties  of  the  United  States  ; 
and  the  chief-justice,  who  delivered  the  opinion  of 
the  court,  declared  that  its  jurisdiction  was  no  less 
clear  in  that  cose  than  in  civil  cases.  He  consider- 
ed ihe  parties  not  less  interested  iH  the  operation  of 

♦  fi  Peters's  Rep.,  515. 


CONSTITUTIONAL    JURISPRUDENCE.  139 

this  unconstituiional  law  than  if  it  had  affected  their 
property  ;  nor  less  entitled  to  the  protection  of  the 
General  Government,  when  the  judgment  of  the 
state  court  affected  their  personal  liberty,  and  in 
flicted  a  disgraceful  punishment.  The  court,  there 
fore,  ordered  the  proceedings  against  the  mission 
aries  o  be  annulled,  and  that  they  should  be  released 
from  their  imprisonment.  The  special  mandate  is 
sued  to  fhe  court  below,  to  carry  that  judgment  into 
effect,  was  not  obeyed,  and  compulsory  proceedings 
were  in  progress  to  enforce  it,  when  the  matter  was 
compromised  by  the  discharge  of  the  missionaries, 
upon  their  withdrawing  the  suits  they  had  com- 
menced against  the  state  officers  for  their  deten- 
tion. 

In  a  more  recent  case,  the  Supreme  Court  observed 
that  if  the  state  legislatures  may  annul  the  judg 
ments  of  the  courts  of  the  United  States,  and  the 
rights  thereby  acquired,  the  Constitution  becomes  a 
solemn  mockery,  and  the  nation  is  deprived  of  the 
means  of  enforcing  its  laws  by  its  own  tribunals  :  so 
fatal  a  result  must  be  deprecated  by  all ;  and  the  peo- 
ple of  every  state  must  feel  a  deep  interest  in  resist- 
ing principles  so  distructive  to  the  Union,  and  in 
averting  consequences  so  fatal  to  themselves.*^ 

The  Supreme  Court  is  also  clothed  with  that  su- 
perintending authority  over  the  subordinate  courts 
of  the  United  States,  which  should  be  deposited  in 
the  highest  tribunal  and  last  resort  of  the  people  for 
justice.  It  has  power  to  issue  prohibitory  writs  to 
the  District  Courts,  when  proceeding  as  courts  of 
admiralty  and  maritime  jurisdiction  ;  and  mandatory 
process  in  cases  warranted  by  the  principles  and 
usages  of  law,  to  any  courts  established,  or  persons 

*  12  Peters  Rep.,  357. 


140  LECTURES    ON 

holding  office  under  the  authority  of  the  United 
States.  The  Supreme  Court,  and  all  the  Federal 
Courts,  have  power  to  issue  all  writs  not  specially 
provided  by  statute,  which  may  be  necessary  for  the 
exercise  of  their  respective  jurisdictions,  and  con- 
formable to  the  principles  and  usages  of  law  ;  and 
the  individual  judges  of  all  of  them  may,  by  writ  of 
Habeas  Corpus,  relieve  all  persons  from  all  manner 
of  unjust  imprisonment  or  restraint  occurring  under, 
or  by  colour  of,  the  authority  of  the  United  States. 

Under  the  power  granted  to  Congress  of  erecting 
tribunals  subordinate  to  the  Supreme  Court,  two  de- 
scriptions of  inferior  courts,  differing  materially  in 
the  nature  and  extent  of  their  respective  jurisdic- 
tions, have  been  established.  For  this  purpose,  the 
United  States  have  been  divided  into  nine  judicial 
circuits ;  and  each  circuit  consists  of  three  or  more 
districts ;  each  district,  for  the  most  part,  comprises 
an  entire  state ;  but  in  some  of  the  larger  and  more 
populous  states  there  are  two  districts.  Some  dis- 
tricts are  not  embraced  within  any  circuit,  and  have 
only  District  Courts ;  which,  however,  exercise  the 
powers  of  a  Circuit  Court  within  their  respective 
districts,  except  in  cases  of  error  and  appeal.  In 
the  District  of  Columbia,  which  comprises  the  terri- 
tory ceded  to  the  United  States  for  the  seat  of  the 
Federal  Government,  there  is  both  a  Circuit  and  a 
District  Court,  specially  and  differently  organized 
for  that  district.  The  former  is  composed  of  a  chief- 
justice  and  two  associate  judges,  from  whose  de- 
cisions writs  of  error  and  appeals  lie  to  the  Supreme 
Court  of  the  United  States.  The  jurisdiction  vested 
m  these  courts  respectively,  corresponds  with  that 
i^ested  in  the  Circuit  and  District  Courts  established 
or  the  Union  at  large. 

II.  The  Circuit  Coirts  are  held  annually  in  each 


CONSTITUTIONAL  JURISPRUDENCE.     141 

judicial  district  by  a  justice  of  the  Supreme  Court, 
assigned  by  law  to  the  particular  circuit,  and  the 
judge  of  the  district,  for  which  the  court  is  held 
But  the  Supreme  Court  may,  in  cases  where  special 
circumstances  in  their  judgment  render  it  necessary, 
assign  two  justices  of  the  Supreme  Court  to  attend 
the  Circuit  Court.  If  a  vacancy  happen  by  the 
death  of  the  justice  of  the  Supreme  Court  to  whom 
the  circuit  is  allotted,  the  district  judge  may,  under 
the  act  of  Congress,  discharge  all  the  duties  of  the 
Circuit  Court  for  his  district,  except  that  he  cannot 
sit  upon  a  writ  of  error,  or  upon  an  appeal  from 
his  own  court;  and  where  the  district  judge  is  ab- 
sent, or  has  been  of  counsel,  or  is  interested  in  the 
cause,  the  Circuit  Court  may  be  holden  by  the  jus- 
tice of  the  Supreme  Court  alone.  If  an  opposition 
of  opinions  between  the  justice  of  the  Supreme  Court 
and  the  district  judge  occurs,  in  a  case  in  which  the 
Circuit  Court  has  original  jurisdiction,  the  point  on 
which  they  disagree  is  directed  by  law  to  be  certi- 
fied to  the  Supreme  Court ;  whereupon  the  cause  is 
removed  into  that  court  for  final  judgment  or  decree  ; 
but  in  all  cases  of  appeal  or  removal  from  a  District 
to  a  Circuit  Court,  judgment  is  to  be  rendered  in  the 
latter  according  to  the  opinion  of  the  justice  of  the 
Supreme  Court  presiding  therein. 

.  The  Circuit  Courts,  thus  organized,  are  invested 
with  original  and  exclusive  jurisdiction,  except  in  cer- 
tain cases  hereafter  mentioned,  of  all  crimes  and  of- 
ences  cogniiable  under  the  authority  of  the  United 
States,  exceeding  the  degree  of  ordinary  misdemean- 
ours ;  and  of  those,  they  have  concurrent  jurisdiction 
with  the  District  Courts.  They  have  original  cog- 
nizance, concurrently  with  the  courts  of  the  several 
states,  of  all  suits  of  a  civil  nature  at  common  law,  or  in 
equity,  where  the  matter  in  dispute  exceeds  a  certain 


142  LECTURES    ON 

sum,  and  the  United  States  are  plaintiff?  ;  or  an  alien 
is  a  party,  or  the  suit  is  between  a  citizen  of  the  state 
where  it  is  brought  and  a  citizen  of  another  state. 
They  have  also  original  jurisdiction  in  equity,  and 
at  law,  of  all  suits  arising  under  the  acts  of  Congress 
relative  to  copy-rights,  and  the  rights  growing  out  of 
inventions  and  discoveries;  and  they  likewise  have 
concurrent  jurisdiction  with  the  District  Courts  of 
the  United  States,  and  with  the  courts  and  magis- 
trates of  the  several  states,  of  all  suits  at  common 
law,  where  the  United  States,  or  an  officer  thereof, 
sues  under  the  authority  of  an  act  of  Congress,  how 
ever  small  the  amount. 

The  Circuit  Courts  of  the  United  States  have 
appellate  jurisdiction  in  all  final  judgments  and 
decrees  and  judgments  of  the  District  Courts  ;  and 
if  any  suit  be  commenced  in  a  state  court  against 
an  alien,  or  by  a  citizen  of  the  state  in  which  the 
suit  is  brought  against  a  citizen  of  another  state,  the 
defendant,  on  giving  security,  may  remove  the  cause 
to  the  Circuit  Court  for  the  Federal  judicial  district 
'n  which  the  suit  is  brought.* 

A  Circuit  Court,  although  an  inferior  court  in  the 
language  of  the  Constitution,  is  not  so  in  the  sense 
which  the  common  law  attaches  to  the  term  ;  nor  are 
its  proceedings  subject  to  the  narrow  rules  which 
apply  to  inferior  courts  of  common  law,  or  courts  of 
special  jurisdiction.  On  the  contrary,  the  Circuit 
Courts  of  the  United  States  are  courts  of  original 
and  durable  jurisdiction,  and  as  such,  are  entitled  to 
liberal  intendments  in  favour  of  their  powers.  They 
are,  nevertheless,  courts  of  limited  jurisdiction,  and 
have  cognizance,  not  of  causes  generally,  but  only 
of  a  few,  under  .special  circumstances,  amounting  to 

*■  A  Dallas.  II.    2  ibid.,  340.    5  Craiich,  185. 


CONSTITUTIONAL    JURLaf|Eui)^p^?^V^43 

a  small  proportion  of  the  case^  whicn  an  unlimited  \ 
jurisdiction  would  embrace  ;  aiid.  the  legal  presump*/^ 
tion  is,  that  a  cause  is  without  their  jurisdiction  until  '^ 
the  contrary  appears.  ^   ^ 

III.   The  District  Courts  are  derived  from  tiie  sam«    i> 
constitutional    power    of  Congress   as  the    Cir^it 
Courts.     They  hold  annually  four  stated  terms,  and 
special   courts   at  the  discretion  of  the  respective 
judges. 

The  District  Courts  of  the  United  States  have,  ex- 
clusively of  the  state  courts,  cognizance  of  all  lesser 
crimes  and  offences  against  the  United  Stat^,  com- 
mitted within  their  respective  districts,  or  upon  the 
high  seas,  and  which  are  punishable  by  fine  and  im- 
prisonment, to  a  small  amount,  and  for  a  short  term. 
They  have  also  exclusive  original  cognizance  of  all 
civil  cases  of  admiralty  and  maritime  jurisdiction ; 
of  seizures  under  the  impost,  navigation,  and  trade 
laws  of  the  Union,  where  the  seizures  are  made  on 
the  high  seas  or  in  waters  within  their  district,  navi- 
gable from  the  ocean  by  vessels  of  ten  or  more  tons' 
burden  ;  and  also  of  all  other  seizures  made  under 
the  laws  of  the  United  States ;  and  of  all  suits  for 
penalties  or  forfeitures  incurred  under  those  laws. 

They  have,  moreover,  cognizance,  concurrent  with 
Circuit  Courts  and  the  state  courts,  of  causes  in 
which  an  alien  sues  for  the  violation  of  a  right  accru. 
ing  to  him  under  the  law  of  nations,  or  a  treaty  of 
the  United  States  ;  and  of  all  suits  at  common  law,  in 
which  the  United  States  are  plaintiffs,  and  the  matter 
in  dispute  is  of  a  certain  small  amount.  They  have 
jurisdiction  likewise,  exclusive  of  the  state  courts,  of 
all  suits  against  consuls  or  vice-consuls,  except  of  of- 
fences of  a  higher'degree  than  those  which  have  been 
mentioned.  They  have  also  exclusive  cognizance 
of  proceedings  to  repeal  patents,  obtained  surrepti- 


144  LECTURES     ON 

tiously,  and  upon  false  suggestions;  and  of  com- 
plaints, by  whomsoever  instituted,  in  cases  of  cap- 
ture made  within  the  waters  of  the  United  States,  oi 
within  a  marine  league  of  their  courts. 

The  judges  of  the  District  Courts  have,  in  cases 
where  the  party  has  not  had  reasonable  time  to  apply 
to  the  Circuit  Courts,  as  full  power  as  is  exercised 
by  the  justices  of  the  Supreme  Court,  to  grant  writs 
of  injunction  in  equity  causes,  to  operate  within  their 
respective  districts,  and  continue  in  force  until  the 
next  sitting  of  the  Circuit  Court. 

IV.  Whe  Courts  of  the  Territories  of  the  United 
States  have  been  created,  from  time  to  time,  by  the 
several  acts  of  Congress  establishing  Territorial  gov- 
ernments in  those  vast  regions  in  the  western  parts 
of  the  Continent  which  were  either  ceded  by  indi- 
vidual states  for  the  common  benefit,  upon  condition 
that  the  proceeds  of  sales  of  the  public  lands  therein 
should  be  applied  to  the  payment  of  the  national  debt 
incurred  during  the  Revolutionary  war,  or  compri- 
sing those  obtained  by  treaty  from  foreign  powers, 
and  never  included  within  the  boundaries  of  any  of 
the  original  members  of  the  Union.  These  Territo- 
ries (as  they  are  politically,  as  well  as  geographical- 
ly termed)  are  not  in  either  case  considered  distinct 
political  societies,  known  to  the  Constitution  as 
states;  but  Congress  has  always  assumed  to  exer- 
cise over  them  supreme  powers  of  sovereignty  ;  and 
has  generally  adopted  for  that  purpose  the  princi- 
ples of  an  ordinance  established  under  the  confeder- 
ation for  governing  the  territory  northwest  of  the 
River  Ohio,  which  now  contains  the  States  of  Ohio, 
Indiana,  Illinois,  and  Michigan.  This  ordinance  was 
formed  upon  sound  and  enlightene(i  principles  of  civil 
jurisprudence,  and  the  judges  appointed  in  that  tnr- 
litory  hold  their  ofiices  during  good  behaviour,  as 


CONSTITUTIONAL    JURISPRUDENCE.  145 

well  as  those  in  the  territories  which  were  succes 
sively  elected  from  the  residuary  parts  of  it.     In  the 
existing  territories  of  Florida,  Wisconsin,  and  Iowa, 
however,  the  governor  and  members  of  the  legisla- 
tive council,  as  well  as- the  judges,  are  appointed  by 
the  President  and  Senate,  but  are  all  removable  at 
the  pleasure  of  the  President ;  and  the  judges,  subject 
to  such  removal,  hold  for  four,  and  the  governor  for 
three    years.     In    the    first,   the  judicial   power   is 
vested  in  two  Superior  Courts,  and  in  such  inferior 
courts  and  magistrates  as  the  legislative  council  may 
establish.     The  legislative  power  in  all  these  terri- 
tories is  vested  in  the    governor,  and  a  legislative 
council  consisting  of  nine  members,  appointed  by  the 
President  and  Senate,  to  continue  in  office  for  five 
years,  and  of  a  House  of  Representatives,  chosen  by 
the    inhabitants    biennially.     The   Superior    Courts 
in  those  territories  have  exclusive  cognizance  of  all 
capital  offences,  and  the  trial  by  jury  is  secured,  to- 
gether with  many  other  great  fundamental  principles 
of  civil   liberty.     The    legislatures    are    prohibited 
from  interfering  with  the  primary  disposal  of  the  soil, 
or  from  taxing  land  belongmg  to  the  United  States, 
or  from  imposing  higher  taxes  on  land  belonging  to 
non-resident  proprietors  than  on  those  of  residents. 
In  the  organization  of  the  territorial  governments  of 
East  and  West  Florida,  one  of  the  Superior  Courts, 
consisting  of  a  single  judge,  is  assigned  to  each  di- 
vision   respectively ;   and  has  within  its  limits  the 
same  jurisdiction,  in  all  cases  arising  under  the  Con- 
stitution and  laws  of  the  United  States,  which  is  vest- 
ed in  the  District  Courts  of  the  United  States,  in  those 
districts  in  which  the  latter  have  the  powers  of  a 
Circuit  Court ;  and  writs  of  error,  and  appeals  from 
the  decisions  of  these  territorial  courts,  may  be  taken 
Vo  the  Supreme  Court  of  the  United  States,  in  the 
M 


146  LECTURES    ON 

same  cases,  and  under  the  same  regulations,  as  from 
the  Circuit  Courts  of  the  Union. 

From  these  various  regulations,  it  appears  that  Con- 
gress possesses  supreme  power  in  regard  to  all  these 
territories,  depending  solely. on  the  exercise  of  its 
sound  discretion.  Neither  the  District  of  Columbia 
nor  a  territory  is  a  state^  within  the  meaning  of  the 
Constitution,  or  entitled  to  claim  the  privileges  se- 
cured to  the  members  of  the  Union.*  Nor  will  a  writ 
of  error  or  an  appeal  lie  from  a  territorial  court  to 
the  Supreme  Court,  unless  there  be  a  special  statuto- 
ry provision  for  the  purpose.! 

'.'  If,"  observes  Mr.  Chancellor  Kent,  "  the  govern- 
ment of  the  United  States  should  carry  into  execu- 
tion the  project  of  colonizing  the  great  valley  of  the 
Oregon  west  of  the  Rocky  Mountains,  it  would  af- 
ford a  subject  of  grave  consideration,  what  would  be 
the  future  civil  and  political  destiny  of  that  country.  It 
would  be  a  long  time,"  he  continues,  '•  before  it  would 
be  populous  enough  to  be  created  into  one  or  more  in- 
dependent states  ;  and,  in  the  mean  time,  upon  the  doc- 
trine taught  by  the  acts  of  Congress,  and  the  judicial 
decisions  of  the  SupremS  Court,  the  colonists  would 
be  in  a  state  of  most  complete  subordination,  and  as 
dependant  upon  the  will  of  Congress  as  the  people 
of  this  country  would  have  been  upon  the  king  and 
Parliament  of  Great  Britain,  if  they  could  have  sus- 
tained their  claim  to  bind  us,  in  all  cases  whatsoever. 
Such  a  state  of  absolute  sovereignty  on  the  one  hand, 
and  of  absolute  dependance  on  the  other,  is  not  at  all 
congenial  with  the  free  and  independent  spirit  of  our 
native  institutions  ;  and  the  establishment  of  distant 
territorial  governments,  ruled  according  to  will  and* 
pleasure,  would  have  a  very  natural  tendency,  as  all 

♦  2  Cranch,  445.    1  Wheaton,  91. 
t  1  Grand),  212.    3  ib.,  159. 


CONSTITUTIONAL  JURISPRUDENCE.    147 

proconsular  governments  have  had,  to  abuse  and  op- 
pression." 

V.  The  State  Courts  ami  Magistrates  are  in  some 
cases  invested  by  Congress  with  cognizance  of  cases 
arising  under  the  laws  of  the  United  States.  It 
seems,  indeed,  that  Congress,  in  the  course  of  its  le- 
gislation upon  the  subjects  intrusted  to  it,  may  com- 
mit the  decision  of  causes  arising  under  a  particular 
act,  solely,  if  deemed  expedient,  to  the  courts  of  the 
Union  ;  but  in  every  case  in  which  the  state  courts 
are  not  expressly  excluded,  they  may  take  cogni- 
zance of  causes  growing  out  of  an  act  of  Congress  : 
and  although  Congress  cannot  confer  jurisdiction 
upon  any  courts  but  such  as  exist  under  the  Consti- 
tution and  its  own  laws,  yet  the  state  courts  may  ex- 
ercise it  in  cases  authorized  by  the  laws  of  the  state, 
and  not  prohibited  by  the  exclusive  jurisdiction  of  the 
Federal  Courts.* 

Various  duties  have  been  imposed  by  Congress  on 
the  state  courts  and  magistrates  ;  and  they  have  been 
invested  with  jurisdiction  in  civil  suits,  and  in  com- 
plaints and  prosecutions  for  fines,  penalties,  and  for- 
feitures, accruing  under  the  laws  of  the  United  States. 
In  civil  suits,  the  state  courts  entertain  such  jurisdic- 
tion ;  but  in  criminal  and  penal  cases  they  have  in 
several  instances  declined  it.  In  what  cases,  and  to 
what  extent,  they  will  exercise  criminal  jurisdiction 
under  the  laws  of  the  Union  ;  and  under  what  cir- 
cumstances, and  how  far,  the  judges  of  the  state  courts 
have  power  to  issue  a  Habeas  Corpus^  and  decide 
on  the  validity  of  a  commitment  or  detainer  under  the 
authority  of  the  National  Government,  are  questions 
which  have  been  variously  determined  in  the  states, 
and  have  never  been  definitively  settled  in  th^  Su- 

*  5  Wheaton,  1. 


148  LECTURES    ON 

preme  Court  3f  the  United  States,  where  the  ultimate 
right  of  determining  them  resides.  The  doctrine, 
however,  seems  to  be  admitted,  that  Congress  can- 
not compel  a  state  court  to  entertain  jurisdiction  in 
pny  case.  It  only  permits  such  of  those  tribunals  as 
Hxe  competent,  and  bave  inherent  jurisdiction  ade- 
']uate  to  the  case,  to  entertain  such  suits  in  given  ca- 
fes ;  and  they  do  not  thereby  become  Superior  Courts, 
in  the  sense  of  the  Federal  Constitution,  because  they 
are  not  ordained  and  established  by  Congress.  The 
state  courts  are  left  to  consult  their  own  duty,  from 
their  state  authority  and  organization  ;  but  if  they  do 
voluntarily  entertain  jurisdiction  of  causes  cognizable 
under  the  authority  of  the  United  States,  they  do  it 
upon  the  condition  that  the  appellate  jurisdiction  of 
the  Federal  Courts  shall  apply.*  Their  jurisdiction 
of  Federal  causes  must,  nevertheless,  be  confined  to 
civil  actions,  for  civil  demands,  or  to  enforce  penal 
statutes.  They  cannot  hold  criminal  jurisdiction  over 
offences  exclusively  against  the  United  States  ;  for 
every  criminal  prosecution  must  charge  the  offence 
to  have  been  committed  against  the  sovereign  whose 
court  sits  in  judgment  upon  the  offender,  and  whose 
authority  can  pardon  him. 

From  the  survey  I  have  now  completed  of  the  or- 
,  ^uization  of  our  Federal  judicial  establishment,  you 
will  have  perceived  that  the  leading  features  of  the 
pystem  are  to  be  found  in  the  act  so  often  referred  to, 
passed  in  1789,  at  the  first  session  of  the  first  Con- 
gress under  the  present  Constitution.  It  was  under- 
stood to  have  been  drawn  up  by  Mr.  Oliver  Ells- 
worth, a  senator  from  Connecticut,  and  has  stood  the 
test  of  severe  experience  since  that  time,  with  very 
little  alteration  or  improvement ;  a  fact  which  affords 

•  14  Johns.  Reps.,  95. 


CONSTITUTIONAL    JURISPRUDENCE.  i  49 

the  strongest  evidence  of  the  wisdom  of  the  plan,  and 
its  skilful  adaptation  to  the  interests  and  convenience 
of  the  country.  It  was  evidently  the  result  of  much 
profound  rellection  and  great  legal  knowledge  •  and 
the  system  thus  formed  and  reduced  to  practice,  has 
been  so  successful  and  beneficial  in  its  operation, 
that  the  administration  of  justice  in  the  Federal  Courts 
has  been  constantly  rising  in  influence  and  reputa- 
tion. In  this  review  of  the  most  important  points 
which  have  arisen  with  respect  to  the  constitutional 
powersof  the  judicial  department,  we  have  seen  that 
it  is  competent,  not  only  to  pronounce  on  the  consti- 
tutionality of  laws  of  the  United  States,  and  on  the 
validity  of  the  constitutions  and  laws  of  the  several 
states,  and  to  declare  either  of  them  void,  when  re- 
pugnant to  the  Federal  Constitution,  or  to  a  law  or 
treaty  of  the  Federal  Government,  but  also  to  revise 
the  judgments  of  a  state  court,  enforcing  any  uncon- 
stitutional ordinance.  We  have  seen,  moreover,  that 
the  Federal  Courts  must  either  possess  exclusive  ju- 
risdiction in  all  cases  affecting  the  Constitution,  laws, 
and  treaties  of  the  Union,  or  they  must  have  power 
to  review  the  judgments  rendered  on  all  such  ques- 
tions by  the  state  tribunals ;  and  that,  so  far  as  the 
latter  power  has  hitherto  been  controverted,  it  has 
been  sustained  by  the  supreme  national  tribunal  with 
great  ability  and  success,  and  with  equal  learning, 
dignity,  and  discretion. 


1 50  LECTURES    ON 


LECTURE  VII. 

OS  THE  POWERS  VESTED  Ix\  Tf  E  FEDERAL  GOVERN* 
MENT,  RELATIVE  TO  SECURITY  FROM  FOREIGW 
DANGER. 

We  are  now  to  enter  upon  the  second  general  di- 
vision of  our  subject,  which  rehites  to  "  the  nature, 
extent,  and  limitation  of  the  powers  vested  in  the 
Federal  Government,  and  the  restraints  imposed  by 
the  Constitution  on  the  states.^ 

The  powers  conferred  on  the  National  Govern- 
ment may  be  reduced,  as  I  have  already  mentioned, 
to  different  classes,  as  they  relate  to  the  following 
different  objects,  viz. : 

First.  Security  from  foreign  danger. 

Second.  Intercourse  with  foreign  nations. 

Third.  Harmony  among  the  states. 

Fourth.  Miscellaneous  objects  of  general  utility. 

Fifth.  Restrictions  on  the  powers  of  the  states  ;  and, 

Sixth.  Provisions  for  giving  efficacy  to  the  powers 
vested  in  the  Union. 

As  security  from  foreign  danger  is  one  of  the  pri- 
mary objects  of  civil  society,  so  it  was  an  avowed 
and  essential  purpose  of  the  union  of  the  states  ;  and, 
accordingly,  the  powers  requisite  to  attaining  it  were 
effectually  confided  to  the  National  Government,  and 
consist, 

1^/.  Of  the  powers  of  declaring  war,  and  granting 
letters  of  marque  and  reprisal. 

2d.  Of  making  rules  concerning  captures  by  land 
and  water. 

3J.  Of  providing  armies  and  fleets,  and  of  regu* 


CONSTITUTIONAL    JURISPRUDENCE.  l51 

(ating  And  calling  forth  the  militia  of  the  states  ;  and, 
as  connected  with  these,  the  substantive  and  distinct 
power  of  levying  taxes  and  borrowing  money. 

I.  The  right  of  self-defence  is  a  part  of  the  law 
of  our  nature,  and  it  is  the  indispensable  duty  of 
civil  society  to  protect  its  members  in  the  enjoyment 
of  their  rights,  both  of  person  and  property.  This  is 
a  fundamental  principle  of  every  social  compact ;  and 
it  is  laid  down  by  all  approved  writers  on  public 
law,  that  on  this  principle,  an  injury  done  or  threat- 
ened to  the  perfect  rights  of  a  nation,  or  any  of  its 
members,  and  susceptible  of  no  other  redress,  is  jus: 
cause  of  war.  But  as  the  evils  of  war  are  certain, 
and  its  results  doubtful,  both  wisdom  and  humanity 
require  that  every  possible  precaution  should  be  ta- 
ken, and  every  necessary  preparation  made,  before 
engaging  in  it.  It  was  formerly  usual  to  precede 
hostilities  by  a  public  declaration  communicated  in 
form  to  the  enemy  ;  but  in  modern  times  this  prac- 
tice has  been  discontinued  ;  and  the  nation  proclaim- 
ing war  now  confines  itself  to  a  declaration  within 
its  own  territory,  and  to  its  own  people. 

The  power  of  declaring  war  is  vested  by  the  Con- 
stitution of  the  United  States  in  Congress ;  without 
whose  consent  no  state  can  engage  in  war,  unless 
actually  invaded,  or  in  such  imminent  danger  of  in- 
vasion as  will  not  admit  delay.  So  that  this  power 
of  Congress  is  not  only  of  its  own  nature  exclusive, 
but  its  concurrent  exercise  is  expressly  prohibited ; 
nor  is  it  easy  to  conceive  where  else  but  in  Congress 
it  could  be  properly  and  prudently  deposited.  Al- 
though Congress  alone,  by  its  solemn  act,  passed, 
like  other  laws,  according  to  the  forms  of  the  Con- 
stitution, can  subject  the  nation  to  the  hazardous 
events  of  war,  yet  the  interposition  of  a  smaller  por- 
tion of  the  government  has  power  to  restore  peace. 


152  LECTURES    ON 

Hostilities  may  be  terminated  by  a  truce^  which  muy 
be  made  by  the  President  alone,  as  commander-in- 
chief  of  the  military  forces  of  the  Union,  and  of 
which  the  duration  may  be  indefinite  ;  while  treaties, 
by  which  peace  is  completely  restored,  may  be  made, 
as  we  have  seen,  by  the  President  and  Senate,  with- 
out the  intervention  of  the  House  of  Representatives. 
As  delay  in  making  war  may  be  sometimes  detri- 
mental to  individuals  who  may  have  sufiered  from  the 
depredations  of  foreign  powers,  Congress  is  invested 
also  with  the  power  of  issuing  letters  of  marque  and 
reprisal ;  the  latter  signifying  a  "  taking  in  return  ;" 
the  former,  "passing  the  frontier  in  order  to  such 
taking."*  This  power  is,  in  all  cases,  plainly  deri- 
ved from  that  of  making  war.  It  induces,  indeed, 
only  an  incomplete  state  of  hostilities,  but  generally 
ends  in  their  formal  denunciation.  By  the  law  of 
nations,  letters  of  marque  and  reprisal  may  be  grant- 
ed whenever  the  subjects  of  one  state  are  oppressed 
and  injured  by  those  of  another,  and  justice  is  denied 
by  the  state  to  which  the  oppressor  belongs.  They 
are  in  the  nature  of  a  commission  granted  by  the  gov- 
ernment to  particular  citizens,  authorizing  them  to 
seize  the  bodies  or  goods  of  citizens  of  the  offending 
nation,  wherever  they  may  be  found,  until  satisfac- 
tion be  made.  And  although  this  procedure  seems 
to  be  dictated  by  Nature  herself,  yet  the  necessity  is 
obvious,  of  calling  on  the  sovereign  power  to  deter- 
mine when  it  may  be  resorted  to  ;  as,  otherwise,  ev- 
ery private  individual  might  act  as  a  judge  in  his  own 

'^  This  is  the  literal  meaning  of  the  terms  ;  but  the  only  practical 
distinction  seems  to  be  the  one  given  in  the  note  to  Mr.  Dupon- 
ceau's  vahiable  edition  of  Bynkcrshnck,  p.  183,  which  is  between 
Letters  of  Marque,  and  Letters  of  Marque  and  Reprisal.  The  latter, 
he  says,  is  "  the  old  technical  expression  for  what  we  now  call  a 
privateer's  commission  ;  the  former  is  applied  to  a  vessel  fitted  out 
for  war  and  merchandise,  and  armed  merely  for  defence." 


CONSTITUTIONAL    JURISPRUDENCE.  153 

cause,  and.  to  avenge  his  private  injury,  involve  the 
nation  to  which  he  belongs  in  war. 

II.  The  'power  of  making  ''''rules  concerning  cap- 
tures on  land  and  water ^^^  which  is  superadded  to  the 
constitutional  power  of  declaring  war,  is  not  confined 
to  captures  made  beyond  the  territorial  limits  of  the 
United  States,  but  comprehends  rules  respecting  the 
property  of  an  enemy  found  within  those  limits.  It 
is  an  express  grant  to  Congress  of  the  power  of  con- 
fiscating such  property,  as  an  independent  substan- 
tive power,  not  included  in  the  power  of  declaring 
war;  and  when  a  v/ar  breaks  out,  the  question  as  to 
the  disposition  of  enemy-property  in  the  country,  is 
a  question  of  policy  for  the  consideration  of  the  Na- 
tional Legislature,  and  not  proper  for  the  considera- 
tion of  the  judicial  power,  which  can  only  pursue 
that  course  in  regard  to  such  property  as  Congress 
may  direct.*  According  to  the  best  writers  on  the 
law  of  nations  a  declaration  of  war  by  the  sover- 
eign power  of  one  state  against  another,  implies  that 
the  whole  nation  declares  war ;  and  that  all  the  sub- 
jects of  the  one  are  enemies  to  all  the  subjects  of 
the  other.  But  although  a  declaration  of  war  has 
this  effect  with  regard  to  individuals,  and  thus  gives 
to  them  those  mutual  and  respective  rights  under  the 
law  of  nations  which  a  state  of  war  confers,  yet  the 
mere  declaration  does  not,  by  its  single  operation, 
produce  any  of  those  results  which  are  usually  ef- 
fected by  the  ulterior  measures  of  the  government, 
consequent  upon  the  declaration  of  war.  By  a  strict 
interpretation,  indeed,  of  the  ancient  public  law,  war 
gives  to  a  nation  full  right  to  tax  the  persons  arid 
confiscate  the  property  of  its  enemy,  wherever  found ; 
and  the  mitigation  of  this  rule  which  the  policy  of 

*  8  Cranch,  .09. 


154  LECTURES    ON 

modern  times  has  introduced  into  practice,  although 
it  may  affect  its  exercise,  can  never  impair  the  right 
itself;  and  whenever  the  Legislature  chooses  to 
bring  it  into  operation,  the  judicial  department  must 
give  it  effect. 

Until  the  legislative  will,  however,  is  distinctly 
declared,  no  power  of  condemnation  can  exist  in  the 
courts ;  and,  from  the  structure  of  our  government, 
proceedings  to  condemn  enemy's  property  found  in 
the  country  at  the  declaration  of  war,  can  be  sus- 
tained only  on  the  principle  of  their  having  been 
commenced  in  execution  of  an  existing  law.  An 
act  of  Congress  simply  declaring  war,  does  not,  by 
its  own  operation,  so  vest  such  property  in  the  gov- 
ernment as  to  support  judicial  proceedings  for  its 
seizure  and  condemnation ;  but  vests  merely  a  right, 
of  which  the  assertion  depends  on  the  future  action 
of  the  Legislature.* 

III.  The  power  of  raising  armies  and  equipping 
fleets  seems  to  be  involved  in  the  power  of  declaring 
war  ;  and  to  have  left  it  to  be  exercised  by  the  states, 
under  the  direction  of  Congress,  as  was  the  case  un- 
der the  confederation,  would  have  inverted  a  primary 
principle  of  the  new  Constitution,  and,  in  practice, 
transferred  the  case  of  the  common  defence  from  the 
Federal  head  to  the  individual  members  of  the  Union 
The  various  inconveniences  which  would  attend  the 
system  of  a  separate  organization  of  the  national 
force  must  be  obvious.  They  had  been  experi- 
enced during  the  war  of  our  Revolution,  and  had 
proved  that  such  a  system  was  oppressive  to  some 
states,  and  dangerous  to  all.  Under  our  present 
Constitution,  sufficient  reasons  have  appeared  to  in- 
duce  an  apprehension   that  the  state   governmenta 

*  8  Cranch,  109. 


CONSTITUTIONAL  JURISPRUDENCE.    155 

are  naturally  prone  to  rivalship  with  the  government 
of  the  Union ;  and  if,  in  addition  to  this,  their  am- 
bition were  stimulated  by  the  separate  and  inde- 
pendent possession  of  military  forces,  too  strong  a 
temptation  and  too  great  a  facility  would  be  given 
them  to  subvert  the  constitutional  authority  of  the 
Union.  The  liberties  of  the  people  would,  moreover, 
be  less  safe  under  such  an  arrangement  than  undei 
that  which  leaves  the  national  forces  in  the  hands 
of  the  National  Government.  So  far  as  an  army  may 
be  likely,  in  this  country,  to  become  an  instrument 
of  ambition  or  power,  it  had  better  be  at  the  disposal 
of  that  power  of  which  the  people  are  most  apt  to  be 
jealous  ;  for  it  is  a  truth  which  the  experience  of 
ages  has  attested,  that  the  people  are  commonly 
most  in  danger  when  the  means  of  invading  their 
rights  are  at  the  command  of  those  of  whom  they 
are  the  least  suspicious. 

Standing  armies  in  time  of  peace  have,  indeed, 
been  objected  to,  as  dangerous  to  our  free  institu- 
lions ;  but  there  can  scarcely  be  ground  for  such  ap- 
prehension, from  the  nature  of  the  Federal  Govern- 
ment ;  while  the  impolicy  of  restraints  on  its  discre- 
tion with  respect  to  raising  forces  by  land  or  sea,  is 
manifest,  from  the  consideration  that  the  efficiency 
of  the  power  depends  on  its  being  indefinite,  and 
upon  its  extending  to  the  maintaining  them  in  peace 
as  well  as  in  war ;  for  with  no  show  of  propriety 
could  the  force  requisite  for  defence  be  limited  by 
those  who  have  no  power  to  limit  the  strength  and 
power  of  offence  possess^ed  by  an  enemy :  nor,  un- 
less our  government  could  set  bounds  to  the  ambition, 
injustice,  or  exertions  of  other  nations,  could  re- 
straints be  safely  imposed  upon  its  discretion,  oi 
limits  prescribed  to  it  for  self-preservation.  Besides 
a  readiness  for  war  w  time  of  peace,  is  not  only  no 


156  LECTURES    ON 

cessary  for  self-defence,  but  affords  the  most  certain 
means  of  preventing  aggression,  by  exhibiting  such 
resources  and  preparations  for  repelling  it  as  may 
discourage  or  deter  an  enemy  from  attempts,  which, 
from  that  very  circumstance,  would  probably  prove 
unavailing.  A  prohibition,  therefore,  against  raising 
and  maintaining  armies  and  fleets  in  time  of  peace, 
would  not  only  exhibit  the  extraordinary  spectacle  of 
a  nation  incapacitated  by  its  constitution  from  pre- 
paring for  defence  before  it  was  actually  invaded,  but 
would  be  altogether  inconsistent  with  the  public 
safety,  and  the  exigencies  of  self-protection,  uidess 
by  its  constitution  it  could  in  like  manner  prohibit 
the  preparations  and  establishments  of  every  hostile 
power.  The  means  of  security  can  only  be  regu- 
lated by  the  means,  probabilities,  and  dangers  of  at- 
tack ;  and  it  would  be  worse  than  useless  to  oppose 
constitutional  barriers  to  the  impulse  of  self-preserva- 
tion, because  it  would  imbody  in  the  Constitution  the 
temptation,  if  not  the  necessity  of  resorting  to  usur- 
pations of  extraordinary  power,  every  precedent  of 
which  would  be  the  excuse  for  unnecessary  and 
multiplied  repetitions  of  measures  far  more  danger- 
ous to  public  liberty  than  a  standing  army,  in  a  coun- 
try with  a  population  and  under  a  government  like 
ours. 

The  jealousy  which  would  abolish  our  military 
establishments  in  time  of  peace,  may  be  traced  to 
those  habits  of  thinking  which  the  inhabitants  of  the 
United  States  derived  from  the  people  from  which 
ihey  sprung,  and  upon  the*  prevailing  sentiments  on 
the  subject  at  the  period  of  our  Revolution.  As  inci- 
dent to  the  undefined  and  unrestricted  power  of  ma- 
king war,  it  was  the  acknowledged  prerogative  of  the 
British  crown  to  maintain,  by  its  own  authority, 
regular  troops  in  time  of  peace.     The  abuse  of  this 


CONSTITUTIONAL  JURISPRUDENCE.     157 

prerogative,  among  others,  led  to  the  public  execution 
of  one  king,  and  the  expulsion  of  another ;  and  to 
guard  for  the  future  against  the  exercise  of  power  so 
dangerous,  the  Bill  of  Rights,  framed  by  the  Conven- 
tion-Parliament, and  acceded  to  by  King  William, 
at  the  revolution  of  1688,  declared  that  "raising  or 
keeping  a  standing  army  in  time  of  peace,  unless 
with  the  consent  of  Parliament,  was  against  law." 
The  events  which  led  to  our  own  Revolution  quick- 
ened the  public  sensibility  on  every  point  connected 
with  the  security  of  popular  rights  ;  and  the  princi- 
ples which  taught  our  fathers  to  be  jealous  of  the 
power  of  an  hereditary  monarch,  were  afterward  ex- 
tended to  their  own  representatives.  In  the  consti- 
tutions of  Pennsylvania  and  North  Carolina,  prohibi- 
tions of  military  establishments  in  time  of  peace 
were  introduced ;  and  in  those  of  New-Hampshire, 
Massachusetts.  Delaware,  and  Maryland,  a  declara- 
tion was  inserted  similar  to  that  of  the  English  Bill  of 
Rights,  although  that  declaration  was  inapplicable  to 
any  of  the  state  governments  ;  for  the  power  of  rais- 
ing and  keeping  on  foot  standing  armies  could  by  no 
possible  construction  be  deemed,  at  that  time,  to  re- 
side anywhere  else  than  in  the  legislatures  them- 
selves.  It  was  therefore  superfluous,  to  say  the 
least  of  it,  to  declare  that  a  measure  should  not  be 
adopted  without  the  consent  of  that  body'  which 
alone  had  the  power  of  adopting  it. 

Those  state  constitutions  which  have  been  most 
approved  are  silent  on  the  subject ;  and  the  only 
•direct  restriction  on  Congress  in  regard  to  the  ex- 
ercise of  its  military  powers,  is  contained  in  an 
amendment  to  the  Federal  Constitution,  which  de- 
clares that  "  no  soldier  shall,  in  lime  of  peace,  be 
quartered  in  any  house  without  the  consent  of  the 
owner  ;  nor   in  time  of  war  hut  in  a  manner  to  bt 


158  LECTURES    ON 

prescribed  by  law."  Even  in  those  stale  constitu 
tions  which  seem  to  have  meditated  a  total  interdic- 
tion of  military  establishments  during  peace,  the 
expressions  used  are  monitory  rather  than  2j}ohibltO' 
ry ;  and  the  ambiguity  of  their  terms  appears  to  have 
resulted  from  a  conflict  between  the  desire  of  exclu- 
ding such  establishments,  and  the  conviction  that 
the  measure  would  be  unwise  and  hazardous.  The 
union  of  the  states  under  the  National  Constitution 
removes  every  pretext  for  a  military  establishment 
in  any  of  the  states  which  could  be  dangerous ; 
while  our  distance  from  the  powerful  nations  of 
Europe  afl^ords  sufficient  security  that  the  Federal 
Government  will  never  be  able  to  persuade  or  de- 
lude the  people  into  the  support  of  large  and  ex- 
pensive peace  establishments.  The^anger,  indeed, 
is  the  other  way ;  and  it  is  rather  to  be  feared  that 
mistaken  notions  of  economy,  if  not  of  jealousy,  will 
always  tend  to  render  our  military  force  not  merely 
too  w^eak  for  the  protection,  but  reduce  it  too  low  even 
for  the  preservation  of  our  forts  and  arsenals.  The 
Union  itself,  however,  is  our  best  protection  and  de- 
fence, and  our  principal  security  against  danger  from 
abroad,  internal  commotion,  or  domestic  usurpation. 
It  may,  moreover,  be  numbered  among  the  blessings 
vouchsafed  to  our  country,  that  the  Union  itself  is  tne 
great  source  of  our  maritime  strength ;  while  the 
palpable  necessity  of  a  navy,  and  its  proved  efficien- 
cy as  an  arm  of  national  defence,  have  silenced  the 
jealousy  or  the  scruples  which  at  one  period  pre- 
vented due  attention  to  fostering  it  in  time  of  peace. 
It  has  since  fought  its  way  to  the  patronage  of  the 
government,  and  it  always  enjoyed  the  favour  of  the 
people. 

V.  The  power  of  regulating  the  militia,  and  com- 
manding its  services  in  cases  oi  insurrection  or  in* 


CONSTITUTIONAL    JUlllSPUUDENCE.  159 

vasioTi;  are  incident  to  the  duties  of  superintending 
the  common  defence,  and  of  watching  over  the  inter- 
nal peace  of  the  Union. 

Uniformity  in  the  organization  and  discipline  of 
the  militia  must  evidently  be  attended  with  the  most 
beneficial  results  whenever  they  are  called  into  ser- 
vice, as  it  enables  them  to  discharge  their  duties 
with  mutual  intelligence  and  concert.  This  desira- 
ble uniformity  could  only  be  accomplished  by  confi- 
ding the  regulation  of  the  militia  of  the  several  states 
to  the  General  Government.  It  was  therefore  es- 
sential that  Congress  should  have  authority,  not  only 
"  to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  to  suppress  insurrections,  and 
repel  invasions,"  but  also  "  to  provide  for  organizing, 
arming,  and  disciplining  them  ;  and  for  governing 
such  parts  of  them  as  may  be  employed  in  the  ser- 
vice of  the  United  States." 

The  President  is  constituted,  as  we  have  seen, 
commander-in-chief  of  the  militia  when  called  into 
the  actual  service  of  the  Union  ;  and  he  is  author- 
ized by  law,  in  cases  of  invasion,  or  imminent  dan- 
ger thereof,  to  call  forth  such  numbers  of  the  militia 
most  convenient  to  the  scene  of  action  as  he  may 
judge  necessary.  The  militia  so  called  forth  are 
subject  to  the  rules  of  war  ;  and  the  law  imposes  a 
fine  on  every  delinquent  who  disobeys  the  summons, 
to  be  adjudged  by  a  court-martial  composed  of  mili- 
tia officers  only,  and  held  and  conducted  according 
to  the  articles  of  war.  During  the  war  of  1812,  the 
authority  of  the  President  over  the  militia  of  the  sev- 
eral states  became  the  subject  of  doubt  and  difficult} 
between  the  Federal  Government  and  some  dF  the 
state  governments.  It  was  the  opinion  of  the  Con- 
necticut Government,  not  only  that  the  militia  could 
not  be  called  out  at  the  requisition  of  the  Genera] 


160  LECTURES    ON 

Goveniment  except  in  a  case  founded  upon  the  ex« 
istence  of  one  of  the  specified  exigencies,  to  be 
judged  of  by  the  state  government  ,  but  that,  when 
called  out,  they  could  not  be  taken  from  the  com 
mand  of  the  officers  duly  appointed  by  the  state, 
and  placed  under  the  immediate  command  of  an  of- 
ficer of  the  United  States  army  :  nor  could  the  Uni- 
ted States,  in  the  opinion  of  that  government,  law- 
iully  detach  a  portion  of  the  privates  from  the  body 
of  their  company.  Similar  difficulties  arose  between 
the  Federal  authorities  and  the  government  of  Mas- 
sachusetts ;  the  governor  of  which  state,  as  well  as 
the  governor  of  Connecticut,  refused  to  furnish  de- 
tachments of  militia  for  the  defence  of  the  maritime 
frontier  on  an  exposition  of  the  Federal  Constitution 
which  they,  no  doubt,  believed  to  be  sound  and  just. 
In  Connecticut,  the  claim  of  the  governor  to  judge 
whether  the  exigency  existed  to  authorize  a  call  of 
the  militia  of  the  state,  or  any  portion  of  it,  into  the 
service  of  the  Union,  and  the  claim  on  the  part  of 
the  state  to  retain  the  command  of  them  when  duly 
ordered  out  against  any  subordinate  officer  of  the 
United  States  army,  were  submitted  to  the  consider- 
ation of  the  State  Legislature,  and  received  the  strong 
and  decided  sanction  of  that  body.  In  Massachu- 
setts, the  governor  consulted  the  judges  of  the  Su- 
preme Court  of  that  state  as  to  the  true  construction 
of  the  Constitution  on  both  those  points.  The  judge* 
were  of  opinion  that  it  belonged  to  the  governors  of 
ihe  several  states  to  determine  when  any  of  the  ex- 
igencies contemplated  by  the  Federal  Constitution 
existed  to  require  them  to  transfer  the  militia,  or  any 
part  fif  it,  to  the  service  of  the  Union  and  command 
of  the  President.  It  was  supposed  that  the  Consti 
tution  did  not  give  the  power  of  judging  as  to  the  ex 
istence  of  the  exigency^  by  any  express  terms,  to  the 


CONSTITUTIONAL    JURISPRUDENCE.  161 

President  or  to  Congress  ;  and  that,  inasmuch  as  it 
was  not  prohibited  to  the  states,  the  right  of  deciding 
upon  that  point  was,  of  course,  reserved  to  them. 
A  different  construction  would,  it  was  alleged,  place 
all  the  militia  in  effect  at  the  will  of  Congress,  and 
produce  a  military  consolidation  of  the  states.  The 
act  of  Congress  vested  in  the  President  the  power 
of  calling  forth  the  militia  when  any  one  of  the  exi- 
gencies existed  ;  and  if  to  that  were  superadded  the 
power  of  determining  the  casus  /(zderis,  the  militia 
would,  in  fact,  be  under  the  President's  control. 

As  to  the  question  how  the  militia  were  to  be 
commanded  when  duly  called  out,  the  Massachusetts 
judges  were  of  opinion  that  the  President  alone,  of 
all  the  officers  acting  under  the  United  States,  was 
authorized  to  command  them  ;  and  that  he  must  com- 
mand them  as  they  were  organized  under  officers  ap- 
pointed by  the  state,  as  they  could  not  be  transferred 
to  the  command  of  any  officer,  not  of  the  militia,  ex- 
cept the  President.  But  these  learned  judges,  act- 
ing as  councillors,  did  not  undertake  to  determine 
how  the  militia  were  to  be  commanded  in  case  of 
the  absence  of  the  President ;  or  of  a  junction  of 
militia  with  regular  troops  ;  or  whether  they  were  to 
act  under  their  separate  officers,  but  in  concert,  as 
foreign  allies  ;  or  whether  the  officer  present  of  the 
highest  rank,  either  of  the  militia  or  of  the  regular 
army,  was  authorized  to  command  the  united  forces  : 
these  were  found,  it  seems,  to  be  questions  too  diffi- 
cult and  perplexing  for  extra-judicial  decision. 

Mr.  Madison,  one  of  the  most  prominent  members 
of  the  Convention  which  formed  the  Constitution,  and 
one  of  its  ablest  defenders,  was,  at  the  time  of  these 
disputes,  President  of  the  United  States,  and  as  such 
declared  that  these  constructions  of  the  constitutional 
powers  of  the  General  Government  over  the  militia 
N 


162  LECTURES    ON 

were  "novel  and  unfortunate."  In  a  message  to 
Congress,  to  which  they  gave  occasion,  he  observed 
that,  "  if  the  authority  of  the  United  States  to  call  into 
service,  and  to  command  the  militia,  could  thus  be 
prostrated,  we  were  not  one  people  for  the  purpose 
most  of  all  requiring  that  we  should  be  united."  Since 
that  period,  many  and  deeply  interesting  questions 
arising  on  the  powers  of  the  Union  have  been  inves- 
tigated and  decided  in  the  Federal  Courts  ;  and  the 
progress  of  public  opinion,  as  well  as  the  tenour  of 
those  decisions,  have  been  favourable  to  a  much  more 
liberal  and  enlarged  construction  of  the  Constitution 
than  that  which  was  adopted  by  the  states  in  ques- 
tion ;  so  that  the  doctrines  of  the  General  Govern- 
ment, as  now  understood,  fully  support  the  claim  of 
Mr.  Madison,  as  President  of  the  United  States,  to 
judge,  exclusively  of  state  authority,  of  the  existence 
of  the  exigency  upon  which  the  militia  may  b&  called 
into  the  service  of  the  Union.  The  acts  of  Congress 
already  referred  to,  as  well  as  the  act  for  establish- 
ing a  uniform  militia  throughout  the  Union,  were 
considered  by  the  Supreme  Court  of  the  United 
States,  in  the  first  case''^  that  came  before  them  on 
the  subject,  as  covering  the  whole  ground  of  Federal 
legislation  in  regard  to  it.  The  manner  in  which 
the  militia  are  to  be  organized,  armed,  disciplined, 
and  governed,  is  fully  prescribed  ;  provision  is  made 
for  draughting,  detaching,  and  calling  forth  the  state 
quotas  when  required  by  the  President ;  his  orders 
are  to  be  given  to  the  chief  magistrate  of  the  state, 
or  to  any  inferior  militia  officer  he  may  think  proper ; 
neglect  or  refusal  to  obey  his  orders  is  declared  to  be 
a  public  offence,  and  subjects  the  offender  to  trial  and 
punishment  by  a  court-martial ;  and  the  mode  of  pro- 

*  5  Wheat.  R.,  1 


CONSTITUTIONAL    JURISPRUDENCE.  163 

ceeding  is  perspicuously  detailed.  The  question 
before  the  court  was  whether  it  was  competent  for  a 
court-martial,  deriving  its  jurisdiction  under  state  au- 
thority, to  try  and  punish  militiamen  draughted,  de- 
tached, and  called  forth  by  the  President  into  th(» 
service  of  the  United  States,  and  who  had  refused 
and  neglected  to  obey  the  call.  The  court  decided 
that  the  militia,  when  called  into  the  service  of  the 
United  States,  were  not  to  be  considered  as  being  in 
that  service  until  they  were  mustered  at  the  place  of 
rendezvous  ;  and  that,  until  then,  the  state  retained 
a  right  concurrent  with  the  United  States  to  punish 
their  delinquencies.  But  after  the  militia  had  thus 
actually  entered  into  the  service  of  the  Union,  their 
character  changed  from  state  to  national  militia ;  and 
the  authority  of  the  General  Government  over  such 
detachments  became  exclusive. 

In  a  subsequent  case,*  which  came  up  on  a  writ 
of  error  on  a  judgment  of  the  highest  court  in  the 
State  of  New- York,  where  the  decision  had  been 
against  this  power  of  the  President  over  the  militia, 
his  claim  was  unanimously  sustained  by  the  Supreme 
Court.  The  power  confided  to  the  President  was, 
indeed,  considered  of  a  very  high  and  delicate  nature, 
but  one  which  could  not  be  executed  without  corre- 
sponding responsibility.  It  is,  nevertheless,  limited 
in  its  terms,  and  confined  to  cases  of  actual  invasion 
or  imminent  danger  ;  and  upon  the  question  whether 
the  President  was  the  sole  and  exclusive  judge  of 
the  existence  of  the  exigency,  or  whether  it  was  one 
which  every  oflicer  to  whom  his  order  was  address- 
ed might  decide  for  himself,  the  court  was  of  opin- 
ion that  the  authority  to  decide  belonged  exclusively 
to  the  President,  and  that  his  decision  was  conclu- 

*  12  Wheaton,  19. 


Ib4  LECTURES  ON 

sive  upon  all  other  persons.  This  construction  was 
lield  necessarily  to  result  from  the  nature  of  the  pow- 
er given  by  the  Constitution,  and  from  the  manifest 
object  contemplated  by  the  act  of  Congress.  The 
power  itself  is  to  be  exercised  on  sudden  emergen- 
cies, and  under  circumstances  which  may  vitally  af- 
fect the  existence  of  the  Union,  and  a  prompt  and 
unhesitating  obedience  is  indispensable  to  the  attain- 
ment of  the  object.  The  service  is  a  military  ser- 
vice, and  the  command  of  a  military  nature ;  and  in 
such  cases,  every  delay  and  obstacle  to  an  efficieni 
and  immediate  compliance,  necessarily  tends  to  pui 
in  jeopardy  the  public  interests.  While  subordinate 
officers  or  soldiers  are  pausing  to  consider  whether 
they  ought  to  obey,  or  are  scrupulously  weighing  the 
evidence  of  the  facts  on  which  the  commander-in- 
chief  exercises  the  right  to  demand  their  services, 
the  hostile  enterprise  may  be  accomplished  without 
the  means  of  resistance.  If  the  power  of  regulating 
the  militia,  and  of  commanding  its  services  in  times 
of  insurrection  and  invasion,  be,  as  has  been  alleged, 
natural  incidents  to  the  duty  of  superintending  the 
common  defence,  and  watching  over  the  internal 
peace  of  the  Union,  then  must  this  power  be  so  con- 
strued, with  respect  to  its  exercise,  as  not  to  defeat 
the  important  ends  in  view.  If  the  governor  of  a 
state,  or  other  superior  officer,  has  a  right  to  contest 
the  orders  of  the  President,  upon  his  own  doubts  as 
to  the  existence  of  the  exigency,  it  must:  be  equally 
the  right  of  every  inferior  officer,  and  of  every  pri- 
vate sentinel ;  and  every  act  of  any  person  in  fur- 
therance of  such  orders  would  render  him  liable  in 
a  civil  suit,  in  which  his  defence  must  finally  rest 
upon  his  ability  to  establish,  by  competent  proof,  the 
facts  upon  which  the  exigency  was  said  to  have 
arisen      Such  a  course  would  obviously  be  subver- 


CONSTITUTIONAL   JURISPRUDENCE.  165 

sive  of  all  discipline,  and  expose  the  best-intentioned 
officers  to  the  chances  of  a  ruinous  litigation  ;  and  in 
many  instances,  the  evidence  on  which  the  President 
may  have  decided  might  not  constitute  technical 
proof,  or  its  disclosure  might  reveal  important  secrets 
of  state,  which  the  public  interests,  and  even  safety, 
might  require  to  remain  concealed. 

This  power,  therefore,  '*  to  provide  for  calling  forth 
the  militia  to  execute  the  laws,  suppress  insurrec- 
tions, and  repel  invasions,"  confided  to  Congress  by 
the  Constitution,  is  carried  into  effect  by  the  law 
which  provides  that,  when  any  such  exigency  exists, 
the  militia  of  the  states  may  be  "  called  forth"  by  the 
chief  magistrate  of  the  Union,  who,  by  the  Constitu- 
tion, is  commander-in-chief  of  the  militia  when  in 
the  actual  service  of  the  United  States,  whose. duty 
it  is  "  to  take  care  that  the  laws  be  faithfully  execu- 
ted," and  whose  responsibility  for  an  honest  dis- 
charge of  his  official  obligations  is  secured  by  the 
highest  sanctions.  He  is  necessarily  to  judge,  in 
the  first  instance,  and  is  bound  to  act  according  to 
his  belief  of  the  facts.  If  he  decide  to  call  forth  the 
militia,  and  his  requisitions,  which  are  orders,  for 
this  purpose,  are  in  conformity  with  the  provisions 
of  the  law,  it  would  seem  to  follow,  as  a  necessary 
consequence,  that  every  subordinate  officer  is  bound 
to  obey  them.  Whenever  the  law  gives  to  the  Pres- 
ident a  discretionary  power,  to  be  exercised  by  him 
upon  his  own  opinion  of  certain  facts,  it  is  a  sound  rule 
of  construction,  that  the  statute  constitutes  him  the  sole 
and  exclusive  judge  of  the  existence  of  those  facts, 
and  it  is  not  a  valid  objection  that  such  power  may 
be  abused  ;  for  there  is  no  power  that  is  not  sus- 
ceptible of  abuse.  The  remedy  for  this,  and  all  other 
official  misconduct,  is  to  be  found  in  the  Constitution 
itself.     In  a  free  government  the  danger  must  be  re- 


166  LECTURES     ON 

mote,  since,  in  addition  to  the  high  qualificationa 
which  the  chief  magistrate  must  be  presumed  to  pos- 
sess, the  frequency  of  elections,  and  the  watchful- 
ness of  the  national  representatives,  carry  with  them 
all  the  checks  that  can  be  useful  to  guard  against 
usurpation  or  tyranny. 

It  has,  however,  been  objected,  that  even  admit- 
ting the  judgment  of  the  President  to  be  conclusive 
as  to  the  existence  of  the  exigency,  still  it  is  neces- 
sary that  it  should  appear  that  the  particular  exigen- 
cy in  fact  existed  ;  and  the  same  principles  were  al- 
leged to  be  applicable  to  the  delegation  and  exercise 
of  this  power  intrusted  to  the  President  for  great 
political  purposes,  as  are  applied  to  the  humblest 
agent  of  the  government,  acting  under  the  most  nar- 
row and  special  authority.  But  when  the  President 
exercises  an  authority  confided  to  him  by  law,  the 
presumption  is,  that  it  is  exercised  in  pursuance  of 
the  law.  Every  public  officer,  indeed,  is  presumed 
to  act  in  obedience  to  his  duty,  until  the  contrary  be 
shown  ;  and  a  fortiori,  that  presumption  ought  to  be 
favourably  applied  to  the  chief  magistrate.  Nor  can 
the  non-existence  of  the  exigency  be  averred  and 
shown  by  the  delinquent  party  ;  for  if  it  could  be  aver- 
red, it  would  be  traversable,  and,  of  course,  might  be 
passed  upon  by  a  jury ;  and  thus  the  legality  of  the 
order  would  depend,  not  on  the  judgment  of  the  Presi- 
dent, but  upon  the  finding  of  those  facts  upon  the  proof 
submitted  to  the  jury.  It  must  therefore  be  sufficient 
if  the  President  determine  the  exigency  to  exist,  and 
all  other  persons  must  be  bound  by  his  decision. 

IV.  The  power  of  raising  money  by  taxation  and 
loans  being  the  main  sinew  of  that  which  is  to  be 
exerted  in  the  national  defence,  is  therefore  properly 
arranged  in  the  same  class,  especially  as  this  object 
is  specified  in  the  Constitution  as  one  of  the  purposes 


CONSTITUTIONAL  JURISPRUDENCE.    167 

of  vesting  it  in  Congress.  The  support  of  the  na- 
tional forces,  the  expense  of  raising  troops,  of  build- 
ing and  equipping  fleets,  and  all  the  other  expendi- 
tures in  any  wise  connected  with  military  and  naval 
plans  and  operations,  are  not,  however,  the  only  ob- 
jects to  which  the  jurisdiction  of  Congress,  with  re- 
spect to  revenue,  extends.  The  terms  by  which  the 
j)ower  is  conferred  embrace  a  provision  for  the  sup- 
port of  the  civil  establishments  of  the  United  States, 
the  payment  of  the  national  debt,  and,  in  general,  for 
all  those  objects  for  which  "  the  general  welfare"  re- 
quires the  disbursement  of  money  from  the  national 
treasury.  The  necessity  of  vesting  this  power  in 
the  Federal  Government  seems  to  be  too  obvious  to 
require  elucidation.  Money  is,  indeed,  the  vital  prin- 
ciple of  the  body  politic.  It  is  that  which  sustains 
its  life  and  motion,  and  enables  it  to  perform  its  most 
essential  functions.  No  government,  therefore,  can 
he  supported  without  possessing  the  means  within 
itself,  independently  of  the  concurrence  of  others,  of 
procuring  a  regular  and  adequate  supply  of  revenue, 
so  far  as  the  resources  at  its  command  will  permit. 
There  must,  of  necessity,  then,  be  interwoven  in  the 
texture  of  every  government  a  power  of  taxation  in 
some  shape  or  other.  In  the  government  of  the 
United  States,  it  is  coextensive  with  the  purposes 
of  the  Constitution.  Congress  is  accordingly  invest- 
ed with  power  "  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises,  to  pay  the  debts,  and  provide  for 
the  common  defence  and  general  welfare  ;"  and  it  has 
also  a  distinct  power  "  to  borrow  money  on  th?  credit 
of  the  United  States." 

It  was  originally  urged  as  an  objection  to  the  Con- 
stitution, and  it  is  still  occasionally  contended,  that 
the  latter  branch  of  the  former  of  these  clauses 
amounts,  in  terms,  to  a  commission  to  exercise  every 


168  Lt::CiURt:s  on 

power  which  may  be  alleged  to  be  necessary  for  the 
^''general  welfare."  But  this  construction  was  prompt- 
ly refuted  by  the  authors  of  '•  The  Federalists  :"  "  Had 
no  other  enumeration  or  definition  of  the  powers  of 
Congress,"  say  they,  "  been  found  in  the  Constitu- 
tion, there  might  have  been  some  colour  for  this  in- 
terpretation, though  it  would  then  have  been  difficult 
to  have  found  a  reason  for  so  awkward  a  form  of 
describing  an  authority  to  legislate  in  all  possible 
cases."  It  is  evident  that  the  expressions  in  ques- 
tion must  be  taken  in  connexion  with  the  preceding 
branch  of  the  clause,  and  were  intended  merely  as  a 
specification  of  the  objects  for  which  taxes  are  to  be 
laid,  and  not  to  convey  a  distinct  and  independent 
power  to  provide  for  "  the  general  welfare."* 

The  power  of  taxation  is,  moreover,  limited,  by  re- 
quiring that  "  capitation  and  other  direct  taxes  shall 
be  apportioned  among  the  several  states  according  to 
their  respective  numbers,  as  ascertained  by  the  cen- 
sus, and  determined  by  the  rule  for  the  apportionment 
of  representatives  in  Congress."  It  is  qualified,  also, 
by  a  provision  that  "  all  duties,  imposts,  and  excises 
shall  be  equal  throughout  the  United  States  ;"  and  it 
is  farther  restricted  by  a  prohibition  upon  Congress 
to  "  lay  any  tax  or  duties  on  articles  exported  from 
the  United  States."  The  Constitution  does  not  de- 
fine or  select  subjects  for  exclusive  taxation  by  the 
Federal  Government ;  although,  in  some  instances, 
an  interference  must  have  been  foreseen  from  the  ex- 
ercise of  a  concurrent  power  with  the  states.  But 
it  was  fhought  better  that  a  particular  state  should 
sustain  this  mconvenience,  than  that  the  national  ne- 
cessities should  fail  of  supply  ;  and  it  was  manifest- 
ly intended  that  Congress  should  possess  full  power 

*  Federalist,  No.  41. 


CONSTITUTIONAL  JURISPRUDENCE.    169 

subject  to  the  restrictions  and  exceptions  I  have  men- 
tioned, over  every  species  of  taxable  property. 

The  term  "  taxes"  is  general,  and  was  made  use 
of  in  the  Constitution  to  confer  a  plenary  authority  in 
all  cases  of  taxation  to  which  the  powers  vested  in 
the  Union  extend.  The  most  familiar  general  di- 
vision of  taxes  is  into  direct  and  indirect ;  and  al- 
though the  Constitution  designates  only  the  former 
species,  it  necessarily  implies  the  existence  of  the 
latter.     The  general  term,  then,  includes, 

\st.  Direct  taxes,  which  are,  properly,  capitation 
taxes,  and  taxes  upon  land ;  although  a  direct  tax 
might  be  laid  on  other  subjects,  such  as  generally 
pervade  all  parts  of  the  Union. 

2d,   Duties,  imposts,  and  excises  ;  and, 

3(i.  All  other  taxes  of  an  indirect  operation. 

A  direct  tax  operates  and  takes  effect  independent- 
ly of  consumption  or  expenditure  ;  w^hile  indirect  taxes 
affect  expense  or  consumption ;  and  the  revenue  ari 
sing  from  them  is  dependant  thereupon.  This  dis- 
tinction between  the  different  species  of  taxes  is  of 
practical  importance,  arising  from  the  different  modes 
in  which  they  are  levied  ;  direct  taxes  being  required 
to  be  "  apportioned  among  the  several  states  accord- 
ing to  the  respective  numbers  of  their  inhabitants  ;" 
while  indirect  taxes,  not  admitting  of  such  appor- 
tionment, are  directed  to  be  "  uniform  throughout  the 
United  States." 

Whether  direct  or  indirect  taxation  were  most  con- 
sistent with  the  interests  of  the  country,  and  the  ge- 
nius of  its  government,  was  a  point  much  discussed 
when  the  Fed-eral  Constitution  was  imder  the  con- 
sideration of  the  state  conventions  ;  and  even  among 
those  who  admitted  the  necessity  of  surrendering  to 
the  National  Government  sources  of  revenue  suffi- 
O 


170  LECTURES     ON 

cie.1t  to  (ILscliarge  its  debts,  and  adequate  to  its  siip- 
port,  tliere  were  some  who  were  jealous  of  the  povv* 
ers  conferred  on  it  for  those  purposes,  and  wished  to 
reserve  all  objects  of  internal  taxation  to  the  states, 
yielding  to  the  United  States  the  power  merely  of 
imposing  duties  on  imported  articles.  But  this  dis- 
crimination, it  was  urged,  would  violate  that  funda- 
mental maxim  of  good  sense  and  sound  policy,  which 
holds  that  every  power  should  be  proportionate  to  its 
object ;  and  that  the  General  Government  would  still 
be  left  in  such  dependance  on  the  several  states  as 
would  be  inconsistent  with  its  proper  vigour  and  ef- 
ficiency. Commercial  imports  alone  were  shown  to 
be  unequal  to  the  exxsting  necessities  and  future  ex- 
igencies of  the  Union  ;  and  as  the  latter  did  not  ad- 
mit of  calculation  or  limitation,  it  was  evident  that 
the  power  of  providing  for  them  ought  also  to  be  un- 
confined,  especially  as,  in  the  usual  course  of  public 
affairs,  the  necessities  of  a  nation,  in  every  stage  of 
its  progress,  are  generally  found  to  be  at  least  equal 
to  its  resources. 

Whether  the  present  financial  condition  of  this 
country  may  not  form  an  exception  in  its  favour,  it 
would,  perhaps,  be  premature  to  decide  ;  and  as  the 
power  in  question  was,  at  all  events,  vested  in  the 
Federal  Government,  the  only  practical  importance 
of  the  distinction  between  direct  and  indirect  taxation, 
consists  in  the  diflerent  modes  in  which  they  are  re- 
spectively to  be  levied.  Direct  taxes  are  required, 
as  we  have  seen,  to  be  apportioned  among  the  states 
a^jcording  to  their  respective  numbers,  while  indirect 
taxes,  not  admitting  of  this  apportionment,  are  to  be 
uniform  throughout  the  United  States.  Thus,  if  Con- 
gress should  think  proper  to  raise  a  sum  of  money 
bv  direct  taxation,  the  quMa  of  each  state  must  be 


CONSTITUTIONAL  JURISPRUDENCE.    171 

fixed  according  to  the  census,  ano  in  conformity  to 
the  rule  of  apportionment  prescribed  by  the  Constitu- 
tion. If  indirect  taxation  be  resorted  to,  the  same 
duty  must  be  imposed  on  the  article  liable  to  it,  wheth- 
er its  quantity  or  consumption  be  greater  or  less  in 
the  respective  states. 

The  judicial  construction  given  to  the  powers  of 
Congress  relative  to  taxation  has  generally  turned 
on  this  distinction.  By  an  act  passed  in  1794,  a  duty 
was  laid  upon  carriages  for  the  conveyance  of  per- 
sons ;  and  the  question  arose  whether  it  were  a  di- 
rect tax,  within  the  meaning  of  the  Constitution.  If 
it  were  not  a  direct  tax,  it  was  admitted  to  be  rightly 
laid ;  but  if  it  were  a  direct  tax,  it  was  not  constitu- 
tionally imposed ;  because,  in  that  case,  it  should 
have  been  laid  according  to  the  representative  num- 
bers of  the  several  states.  The  Circuit  Court  for 
Virginia,  where  the  question  arose,  w^as  divided  in 
opinion  ;  but  on  appeal  to  the  Supreme  Court,  it  was 
decided  that  the  tax  in  question  was  not  a  direct  tax, 
and  had,  therefore,  been  levied  according  to  the  Con- 
stitution. It  was  observed,  on  this  occasion,  that  the 
Constitution  contemplated  no  taxes  as  direct  taxes 
but  such  as  could  be  laid  in  proportion  to  the  census  ; 
and  that  the  rule  of  apportionment  could  not  apply 
to  tho  tax  on  carriages  ;  nor  could  such  a  tax  be  laid 
by  that  rule,  without  great  inequality  and  injustice  ; 
and  the  argument  by  which  this  inequality  and  injus- 
tice were  shown  was  conclusive  against  the  contrary 
construction.*  But  although  duties  must  be  uniform, 
and  direct  taxes  apportioned  according  to  numbers, 
yet  the  provision  of  the  Constitution  with  respect  to 
the  latter  does  not  restrict  the  power  of  Congress  to 

*  3  Dallas,  171. 


172  LECTURES    ON 

impose  taxes  on  the  inhabitants  of  the  states  only, 
but  extends  equally  to  all  places  over  which  the 
Federal  Government  has  jurisdiction  ;  and  applies 
to  the  District  of  Columbia,  and  to  the  territories, 
which  are  not  represented  in  Congress.*  The  pow- 
er of  Congress  to  exercise  exclusive  legislation,  in 
all  cases  whatsoever,  over  the  District  of  Columbia, 
includes  the  power  of  taxing  its  inhabitants.  But 
Congress  are  not  absolutely  to  exercise  that  power, 
though  they  may,  in  their  discretion,  extend  a  tax  to 
all  the  territories  of  the  United  States,  as  w^ell  as  to 
the  states.  A  direct  tax,  if  laid  at  all,  must  be  laid 
according  to  the  census  ;  and,  therefore.  Congress 
has  no  authority  to  exempt  any  state  from  its  due 
share  of  the  burden  ;  and  although  they  are  not  un- 
der the  same  necessity  of  extending  a  tax  to  the  un- 
represented district,  set  apart  for  the  seat  of  the  Na- 
tional Government,  nor  to  the  national  territories,  yet, 
if  the  tax  be  actually  extended  to  them,  the  same  con- 
stitutional rule  of  apportionment  must  be  applied  in 
levying  it.  This  construction  allowing  a  discretion 
in  Congress  as  to  the  imposition  of  taxes  upon  the 
inhabitants  of  these  territories,  must,  at  all  events,  be 
admitted  to  be  the  most  convenient,  as  the  expense 
of  collecting  a  tax  in  some  of  them  might  exceed  its 
amount.  Nor  can  this  departure  from  the  rule  which 
holds  representation  and  taxation  to  be  inseparable, 
be  considered  very  material  or  important  with  respeci 
to  those  settlements  which  are  still  in  their  infancy, 
though  rapidly  advancing  to  manhood,  and  looking 
forward  with  perfect  confidence  to  complete  equality 
as  soon  as  they  attain  the  requisite  maturity.  As  it 
relates  to  the  District  of  Columbia,  the  construction 

♦  5  Wheaton,  317. 


CONSTITUTIONAL    JURISPRUDENCE.  173 

in  question  can  hardly  be  regarded  as  impugning  the 
great  principle  alluded  to,  inasmuch  as  its  inhabitants 
have  voluntarily  relinquished  the  right  of  representa- 
tion, and  adopted  the  whole  body  of  Congress  as  its 
legitimate  government. 

A  question,  however,  of  much  greater  interest  and 
importance  has  arisen,  in  regard  to  this  power  of  tax- 
ation, which,  of  late  years,  has  been  much  discussed 
in  our  public  councils,  and  has  not  yet  ceased  to 
agitate  a  portion  of  the  Union.  I  refer  to  the  author- 
ity of  Congress  to  impose  duties  on  articles  of  for- 
eign importation  for  the  encouragement  and  protection 
of  domestic  manufactures  ;  and  to  the  proceedings 
which  call  in  question  and  deny  the  constitutional  ex- 
istence of  any  such  authority  in  Congress,  and  de- 
nounce its  exercise  as  usurpation.  The  constitutional 
validit)'-  of  those  acts  of  Congress  which  impose  duties 
on  importations,  with  that  end  in  view,  has  never  been 
presented  as  a  point  for  adjudication  in  the  Federal 
Courts,  but  a  legislative  construction  in  favour  of  the 
right  of  Congress  to  pass  them  was  adopted  and 
acted  upon  at  the  earliest  period  of  the  existence  and 
operation  of  the  Federal  Government.  Of  late  years, 
however,  a  controversy  has  arisen  on  the  subject, 
which  at  one  time  threatened  the  peace  and  integri- 
ty of  the  Union  ;  and  which,  though  suspended,  can 
ny  no  means  be  considered  as  definitively  settled, 
ftome  examination  of  its  merits  may  be  useful,  if  not 
necessary. 

Although  Congress  has  the  express  and  exclusive 
power  "  to  lay  and  collect  duties,  imposts,  and  ex- 
cises, to  pay  the  debts,  and  provide  for  the  common 
defence  and  general  welfare  of  the  United  States," 
yet  it  is  denied  that  these  words  confer  authority  to 
lay  duties  and  imposts  for  any  other  purposes  than 
those  of  discharging  the  national  debts,  supporting 


174  LECTURES    ON 

the  civil  and  military  establishments  of  the  govern- 
ment, and  of  carrying  into  effect  the  powers  specifi- 
cally enumerated,  and  vested  by  the  Constitution  in 
Congress  ;  thus  excl  jding  from  all  share  of  meaning 
the  last  member  of  the  clause,  which  specifies  the 
"  general  welfare'*  as  one  of  the  objects  for  which 
vhis  branch  of  taxation  was  wholly  given  up  to  the 
National  Government.  And  while  some  contend  that 
there  is  no  express  authority  granted  to  Congress  to 
lay  duties  on  foreign  commodities,  in  order  to  favour 
or  protect  similar  productions  and  fabrics  of  our  own 
growth  or  manufacture — nor  any  power,  express  or 
implied,  to  encourage  domestic  industry  by  any  means 
whatsoever ;  and  that  no  such  authority  or  power 
arises  from  intendment,  as  necessary  to  carry  into 
effect  any  of  the  enumerated  powers  ;  others  allege 
that  this  authority,  if  it  exist  at  all,  can  only  be  con- 
stitutionally exercised  indirectly,  as  resulting  inci- 
dentally from  the  power  to  regulate  commerce  with 
foreign  nations  ;  and  that  imposts  beyond  what  may 
be  requisite  to  provide  a  revenue  to  meet  the  necessa- 
ry and  ordinary  expenditures  of  the  government,  can 
only  be  imposed  to  the  extent  required  to  countervail 
the  commercial  restrictions  of  other  countries. 

You  will  perceive,  in  the  first  place,  that  this  ex- 
position of  the  power  in  question  denies,  in  effect, 
any  operation  whatever  to  that  branch  of  the  clause 
in  the  Constitution  by  which  it  is  supposed  to  be 
conferred ;  and  thus  adopts  the  opposite  extreme  to 
that  latitude  of  construction  which  would  give  to  the 
expressions  relative  to  providing  for  the  "  general 
welfare,"  a  meaning  more  extensive  than  any  other 
part  of  the  Constitution,  and  invest  Congress  with  a 
general  power  of  legislation,  it  is,  however,  a  sound 
rule  of  construction,  and  admitted  to  be  universal  in 
its  application,  that  the  diOerent  parts  of  the  same  in- 


CONSTITUTIONAL    JURISPRUDENCE.  175 

struinent  are  to  be  so  expounded  as  to  give  effect  to  the 
whole,  and  to  every  portion  susceptible  of  meaning. 
It  is  not  to  be  presumed  that  the  words  in  question 
were  introduced  without  some  object;  they  are  not, 
therefore,  to  be  excluded  from  all  share  in  the  interpre- 
tation of  the  clause,  unless  incapable  of  bearing  any 
signification  in  connexion  with  those  with  which  they 
are  conjoined.  But  the  speciric  ends  embraced  by 
these  general  terms  cannot  certainly  be  supposed  to 
be  comprised  among  those  more  definite  objects,  sub- 
sequently enumerated  in  another  and  separate  clause 
in  the  same  article  of  the  Constitution ;  and  it  must 
therefore  be  intended  that  other  objects  were  meant 
to  be  accomplished  by  means  of  the  taxing  power, 
than  the  payment  of  the  "  public  debt,"  and  providing 
for  the  "  common  defence  :"  and  that  those  farther  ob- 
jects comprehend  everything  to  which  the  "  general 
w^elfare"  required  the  power  to  be  applied,  as  the  di- 
rect means  of  effecting  the  end  proposed. 

A  different  view  was,  indeed,  taken  of  this  clause 
of  the  Constitution  by  the  authors  of  "  The  Federal- 
ist ;"*'  and  that  high  authority  has  been  quoted  in 
support  of  a  very  different  interpretation.  In  answer- 
ing the  objection  urged  against  the  general  expres 
sions  with  which  the  clause  concludes,  as  conferring 
a  distinct  and  substantive  power  "  to  provide  for  the 
common  defence  and  general  welfare  of  the  United 
States,"  the  authors  of*'  The  Federalist"  do  not  advert 
to  the  circumstance  that  those  expressions  are  used 
merely  as  a  general  and  summary  designation  of  the 
purpose  for  which  taxes  were  to  be  laid,  independ- 
ently of  the  objects  subsequently  specified;  but  in 
refuting  the  objection,  they  seem  to  adopt,  in  part,  the 
construction  of  their  adversaries,  and  admit  that  the 

*  No.  41. 


176  LECTURES    ON 

words  in  question  confer  a  substantive  and  independ- 
ent power,  distinct  from  the  power  of  taxation  ;  and 
they  meet  the  argument  drawn  from  these  terms, 
against  this  extensive  and  sweeping  operation  of  the 
power,  by  alleging  that  it  was  restricted  by  the  sub- 
sequent enumeration  of  the  specific  powers  of  Con- 
gress in  the  same  section.  It  has  since,  however, 
been  judicially  decided,  and  is  even  admitted  by 
those  who,  nevertheless,  seek  to  avail  themselves  of 
this  authority,  that  these  words  do  not  invest  Con- 
gress with  any  power  whatsoever  distinct  from  the 
power  of  taxation,  but  that  they  merely  refer  to  the 
purposes  for  which  that  power  may  be  exercised. 
So  far,  moreover,  from  affording  support  to  the  argu- 
ment against  the  power  of  Congress  to  encourage  man- 
ufactures, two  of  the  authors  of  "  The  Federalist," 
soon  after  the  organization  of  the  government,  offi- 
cially asserted  that  power  to  be  exclusively  vested  in 
Congress,  which  body,  they  contended,  was  bound 
to  exercise  it.  They  derived  it,  indeed,  from  the 
power  to  regulate  commerce  ;  but  the  acknowledged 
construction  of  the  clause  conferring  the  power  of 
taxation,  referring  to  the  exercise  of  that  power,  as 
the  means  or  instrument  of  providing  for  the  general 
welfare,  affords  an  ampler  basis  for  the  right ;  and  in 
order  to  establish  it  on  this  broader  and  more  solid 
foundation,  it  becomes  necessary  to  show  that  the 
•'  general  welfare"  is,  in  fact,  promoted  by  imposing 
duties  on  foreign  commodities  to  such  an  amount  as 
to  foster  our  home-manufactures. 

This  is  clearly  a  question  of  national  policy  and  le- 
gislation, involving  facts  and  opinions  not  cognizable, 
from  their  nature,  in  the  judicial  tribunals,  but  depend- 
ing for  their  determination  upon  a  sound  exercise  of 
legislative  discretion.  Their  decision  must  of  neces- 
sity belong  to  the  National  Legislature  ;  for  the  states 


CONSTITUTIONAL    JURISPRUDENCE.  177 

s^annot  afford  the  protection  in  the  mode  contemplated, 
inasmuch  as  they  are  prohibited  from  laying  any  da- 
ties  on  imports,  except  such  as  may  be  necessary  for 
executing  their  own  health  and  inspection  laws,  and 
have  no  power  whatsoever  to  regulate  commerce. 
Whatever,  therefore,  may  be  the  opinions  of  the  mosi 
enlightened  men  as  to  the  policy  of  protecting  do- 
mestic manufactures,  or,  in  other  words,  as  to  the 
question  whether  the  "  general  welfare"  is  promoted 
by  the  imposition  of  duties  on  imports  with  that  view, 
those  opinions  must  necessarily  be  founded  on  facts 
and  principles  of  political  economy,  concerning  which 
none  but  the  National  Legislature  can,  for  any  prac- 
tical purpose,  authoritatively  decide.  The  necessity 
of  vesting  in  Congress  the  power  of  determining  such 
a  question,  may  be  illustrated  by  analogy  from  the 
power  of  the  President  to  judge  of  the  existence  of 
the  exigency  upon  which  his  power  of  calling  forth 
the  militia  is  made  to  depend.  Without  such  authority, 
we  have  seen  that  both  the  existence  of  the  exigency 
and  the  legality  of  the  proceedings  would  turn,  not 
on  his  knowledge  or  belief  of  the  one,  or  his  judg- 
ment on  the  other,  but  upon  the  verdict  of  a  jury  as 
to  the  facts,  and  the  judgment  of  the  court  on  the  le- 
gal questions  they  might  present.  So  with  respect 
to  the  power  now  under  consideration  :  unless  Con- 
gress have  authority  to  decide  on  the  circumstances 
upon  which  the  exercise  of  their  legislative  discre- 
tion depends,  both  facts  and  principles  of  a  complica- 
ted character,  concerning  which  great  conflict  of 
opinions  exists,  would  be  subject  to  judicial  exami- 
nation, and  a  construction  given  to  the  Constitution, 
not  merely  by  the  judgment  of  the  court  on  the  ques- 
tion whether  Congress  is  authorized  "  to  lay  duties 
to  provide  for  the  general  welfare,"  but  upon  the 
opinion  of  the  jury  whether  "the  general  welfare'* 


17^3  LECTURES   ON 

was,  upon  sound  principles  of  public  policy,  in  fact 
promoted  by  protecting  duties. 

With  regard  to  the  existing  laws  imposing  duties 
on  imported  articles,  the  objection,  so  far  as  founded 
on  the  nature  of  the  objects  to  which  the  revenue 
thus  produced  is  applied,  loses  much  of  its  force, 
from  the  circumstance  that  these  laws  were  passed 
before  the  extinction  of  the  public  debt,  for  the  pay- 
ment of  which,  as  well  as  to  the  support  of  the  na- 
tional institutions,  the  proceeds  of  those  duties  were 
intended  to  be  applied.  Whether  they  have  in  fact 
been  so  applied,  or  to  what  purposes  the  surplus 
arising  from  them  has  been,  from  time  to  time,  ap- 
propriated, are  questions  wholly  independent  of  the 
constitutional  validity  of  laws  merely  authorizing 
such  duties  to  be  collected.  When  collected,  and 
paid  into  the  national  treasury,  they  are  mingled  with 
the  general  mass  of  funds,  and  are  at  the  disposal 
of  Congress  ;  and  as^  by  the  Constitution,  "  no  money 
can  be  drawn  from  the  treasury  but  in  pursuance 
of  appropriations  made  by  law,"  the  question  as  to 
the  constitutionality  of  the  objects  to  which  any  part 
of  the  public  revenues  may  be  applied  can  never 
arise,  until  a  law  be  proposed  or  enacted  for  their 
specific  appropriation. 

It  has  been,  moreover,  objected  that  the  existing 
laws,  imposing  duties  on  imports,  are  unequal  in 
their  operation,  and  therefore  contrary  to  that  pro- 
vision of  the  Constitution  which  requires  all  duties 
to  be  '^  uniform  throughout  the  United  States."  But 
the  uniformity  required  is  plainly  in  the  imposition, 
and  not  in  the  operation  of  the  duties  ;  and  whatever 
may  be  the  fact  as  to  the  inequality  of  their  opera- 
tion, it  is  equally  plain  that  it  never  can  be  controlled 
by  the  Legislature,  but  must  always  be  regulated  by 
ihe  consumption  of  the  article  ;  for  all  indirect  taxes, 


CONSTITUTIONAL    JURISPRUDENCE.  179 

except  imposts  on  articles  of  absolute  necessity,  may 
be  said  to  be  voluntary  in  their  operation  ;  as  the 
amount  paid  by  any  individual  must  always  depend 
on  his  spontaneous  purchase  of  the  article. 

The  power  of  harrowing  money  on  the  credit  of  the 
United  States  is  conferred  on  the  National  Govern- 
ment in  general  terms ;  but  as  the  public  credit  of 
the  Union  must  depend  on  the  sources  of  revenue 
placed  at  its  command,  this  power  must  have  been 
intended  to  be  exercised  in  anticipation  of  the  na- 
tional resources,  and  must,  consequently,  be  subject 
to  the  same  restrictions  as  to  its  objects,  to  w4iich 
the  power  of  taxation  is  limited  and  confined. 

When  the  present  Constitution  was  adopted,  the 
United  States  were  indebted  to  foreign  nations  for 
the  expenses  of  our  Revolutionary  war ;  and  many 
of  our  own  citizens  had  large  claims  either  upon  the 
confederacy,  or  upon  its  separate  members,  for  ser- 
vices and  supplies  during  that  eventful  contest.  To 
liquidate  and  consolidate  those  debts,  discharge  a 
part  of  them,  and  secure  the  remainder,  were  meas- 
ures necessary  to  the  preservation  of  the  public 
faith,  and  the  maintenance  of  the  pubUc  interests, 
both  at  home  and  abroad.  But  to  have  resorted  to 
taxation,  in  order  immediately  to  accomplish  these 
objects,  would,  had  it  even  been  practicable,  have 
proved  injurious  to  the  nation,  and  ruinous  to  private 
individuals.  It  was  foreseen  that  many  of  the  pub- 
lic creditors  would  be  satisfied  w4th  the  assumption 
or  recognition  by  the  new  government  of  the  princi- 
pal, and  the  payment  of  the  interest  of  the  public 
debts.  Under  the  power  conferred  on  Congress  to 
borrow^  money,  it  was  enabled  to  make  the  necessary 
provisions  for  combining  the  whole  expenses  of  the 
war,  whether  incurred  by  the  confederacy  or  the 
states,  in  one  general  amount,  and  funding  it  as  one 


180  LECTURES    ON 

consolidated  debt.  The  sources  of  revenue  placed  al 
the  disposal  of  the  Federal  Government  have  since 
enabled  it  to  discharge,  not  only  the  whole  of  this  debt, 
but  that,  also,  which  occurred  in  the  late  v^^ar.  But 
in  case  of  future  exigencies,  or  a  failure  of  the  usual 
supplies  of  revenue,  similar  means  are  at  its  com- 
mand for  continuing  its  operations,  maintaining  its 
existence,  and  vindicating  its  honour. 


LECTURE  VIII. 

ON  THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERN- 
MENT FOR  REGULATING  INTERCOURSE  WITH  FOR- 
EIGN   NATIONS. 

The  powers  vested  in  the  General  Govern- 
ment for  regulating  foreign  intercourse,  consist, 

First,  Of  the  powers  to  make  treaties  ;  and  to 
send  and  receive  ambassadors,  and  other  public 
ministers,  and  consuls. 

Secondly,  Of  the  power  to  define  and  punish 
piracies  and  felonies  committed  on  the  high 
seas,  and  other  offences  against  the  law  of  na- 
tions ;  and, 

Thirdly,  Of  the  power  of  regulating  foreign 
commerce ;  including  a  power  to  prohibit,  after 
a  certain  period,  now  elapsed,  the  importation 
of  slaves. 

This  class  of  powers  forms  an  obvious  and  es- 
sential branch  of  Federal  administration  ;  for  if 
the  United  States  are  one  nation  in  any  respect^ 
they  are  most  clearly  so  in  respect  to  other  na- 
tions. 

I.  The  powers  to  make  treaties,  and  to  send 
and  receive  ambassadors  and  other  public  minis- 


CONSTITUTIONAL    JURISPRUDENCE.  181 

ters,  are  essential  attributes  of  national  sover- 
eignty, and  of  that  international  equality  which 
the  interests  of  every  sovereignty  require  it  to 
preserve.  Both  powers  were  possessed  bj'-  Con- 
gress under  the  Confederation,  but  not  to  the 
extent  to  which  they  are  now  enjoyed  ;  for  then 
the  former  power  was  embarrassed  by  an  excep- 
tion, under  which  treaties  might  be  substantially 
frustrated  by  regulations  of  the  states,  and  the 
latter  did  not  comprehend  •'  other  public  minis- 
ters and  consuls." 

As  treaties  with  France  and  Holland,  and  es- 
pecially the  treaty  of  peace  with  ^reat  Britain^ 
existed  when  the  Constitution  was  adopted,  it 
became  necessary  to  vary  its  terms  in  regard  to 
treaties,  from  those  relative  to  the  laws  of  the 
United  States  j  the  declaration  it  contains  in  re- 
spect to  the  supremacy  of  the  latter  operating 
only  in  future,  while  in  reference  to  the  former 
the  terms  are,  "  all  treaties  made,  or  which  shall 
he  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme,  law  of  the  land."  These 
terms  were  intended  to  apply  equally  to  previ- 
ously existing  treaties,  as  well  as  to  those  made 
subsequently  to  the  Constitution  ;  and  it  has,  ac- 
cordingly, been  adjudged,  by  the  Supreme  Court, 
that  they  effectually  repeal  so  much  of  the  state 
laws  and  constitutions  as  are  repugnant  to  them.* 

More  general  and  extensive  terms,  also,  are 
used  in  vesting  the  power  with  respect  to  trea- 
ties, than  in  conferring  that  relative  to  laws  ;  and, 
while  the  latter  is  laid  under  several  restrictions, 
there  are  none  imposed  on  the  exercise  of  the 
former,  notwithstanding  it  is  committed  to  the 

*  .'^  Dalla  ■.,  10). 


182  LECTURES    ON 

President  and  Senate,  in  exclusion  of  the  House 
of  Eepresentatives,  and  is  executed  through  the 
instrumentality  of  agents,  delegated  for  the  pur- 
pose. And  although  the  President  and  Senate 
are  thus  invested  with  this  high  and  exclusive 
control  over  all  those  subjects  of  negotiation 
with  foreign  powers,  which,  in  their  consequen- 
ces, may  affect  important  domestic  interests,  yet 
it  would  have  been  impossible  to  have  defined  a 
power  of  this  nature,  and,  therefore,  general 
terms  only  were  used.  These  general  expres- 
sions, however,  ought  strictly  to  be  confined  to 
their  legitimjUe  signification  ;  and  in  order  to  as- 
certain whether  the  execution  of  the  treaty-ma- 
king power  can  be  supported  in  any  given  case, 
those  principles  of  the  Constitution,  from  which 
the  power  proceeds,  ought  carefully  to  be  applied 
to  it.  The  power  must,  indeed,  be  construed  in 
subordination  to  the  Constitution ;  and  however, 
in  its  operation,  it  may  qualify,  it  cannot  super- 
sede or  interfere  with,  any  other  of  its  funda- 
mental provisions,  nor  can  it  ever  be  so  inter- 
preted as  to  destroy  other  powers  granted  by 
that  instrument.  A  treaty  to  change  the  organi- 
zation of  the  government,  or  annihilate  its  sov- 
ereignty, or  overturn  its  Republican  form,  or  to 
deprive  it  of  any  of  its  constitutional  powers, 
would  be  void;  because  it  would  defeat  the  will 
of  the  people,  which  it  was  designed  to  fulfil. 

A  treaty,  in  its  general  sense,  is  a  compact 
entered  into  with  a  foreign  power,  and  extends 
to  all  matters  which  are  usually  the  subject  of 
compact  between  independent  nations.  It  is,  in 
its  nature,  a  contract^  and  not  a  legislative  act; 
and  does  not,  according  to  general  usage,  effect 
of  itself  the  objects  intended  to  be  accomplished 


CONSTITUTIONAL    JL'RISPRUDENCE.  d  83 

by  it,  but  requires  to  be  carried  into  execution 
by  some  subsequent  act  of  sovereign  power  by 
the  contracting  parties,  especially  in  cases  where 
it  is  meant  to  operate  within  the  territories  of 
either  of  them.  With  us,  however,  a  different 
principle  is  established.  It  has  been  settled  by 
the  Supreme  Court,*  that,  inasmuch  as  the  Con- 
stitution declares  a  treaty  to  be  the  law  of  the 
land,  it  is  to  be  regarded  in  courts  of  justice  as 
equivalent  to  an  act  of  the  Legislature,  whenever 
it  operates  of  itself  without  requiring  the  aid  of 
any  legislative  provision.  But  when  the  terms 
of  any  treaty  stipulation  import  an  executory  con- 
tract, it  addresses  itself  to  the  political,  and  not 
to  the  judicial,  department  for  execution,  and 
Congress  must  pass  a  law  in  execution  of  the 
compact,  before  it  becomes  a  rule  for  the  courts. 
The  Constitution  does  not  expressly  declare 
whether  treaties  are  to  be  held  superior  to  the 
acts  of  Congress,  or  whether  the  laws  are  to  be 
deemed  coequal  with  or  superior  to  treaties 
but  the  representation  it  holds  forth  to  foreign 
powers,  is  that  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  may  bind  the 
nation  in  all  legitimate  contracts ;  and  if  pre-ex- 
isting laws,  contrary  to  a  treaty,  could  only  be 
abrogated  by  Congress,  this  representation  would 
be  fallacious.  It  would  subject  the  public  faith 
to  just  imputation  and  reproach,  and  destroy  all 
confidence  in  the  national  engagements.  The 
immediate  operation  of  a  treaty  must,  therefore, 
be  to  overrule  all  existing  laws  incompatible  with 
its  stipulations. 

Nor  is  this  inconsistent   with   the  power   of 

*  2  Peter«  iJ14 


184  LECTURES    ON 

Congress  to  pass  subsequent  laws,  qualifying,  al- 
tering,  or  wholly  annulling  a  treaty ;  for  such 
an  authority,  in  certain  cases,  is  supported  on 
grounds  wholly  independent  of  the  treaty-making 
power.  For,  as  Congress  possesses  the  sole 
right  of  declaring  war,  and  as  the  alteration  or  ab- 
rogation of  a  treaty  tends  to  produce  it,  the  pow- 
er in  question  may  be  regarded  as  an  incident  to 
that  of  declaring  war.  The  exercise  of  such  a 
right  may  be  rendered  necessary  to  the  public 
welfare  and  safety,  by  measures  of  the  party  with 
whom  the  treaty  was  made,  contrary  to  its  spir- 
it, or  in  open  violation  of  its  letter  5  and  on  such 
grounds  alone  can  this  right  be  reconciled  ei- 
ther with  the  provisions  of  the  Constitution  or 
the  principles  of  public  law.  A  memorable  in- 
stance has  occurred  in  our  history  of  the  annul- 
ment of  a  treaty  by  the  act  of  the  injured  party. 
In  the  year  1798,  Congress  declared  that  the 
treaties  with  France  were  no  longer  obligatory 
on  the  United  States,  as  they  had  been  repeated- 
ly violated  by  the  French  government,  and  our 
just  claims  for  reparation  disregarded.  Never- 
theless, all  treaties,  as  soon  as  ratified  by  com- 
petent authority,  become  of  absolute  efficacy, 
and,  as  long  as  they  continue  in  force,  are  bind- 
ing upon  the  whole  nation.  If  a  treaty  require 
the  payment  of  money  to  carry  it  into  effect,  and 
the  money  can  only  be  raised  or  appropriated  by 
an  act  of  the  Legislature,  it  is  morally  obligatory 
upon  the  legislative  power  to  pass  the  requisite 
law  j  and  its  refusal  to  do  so  would  amount  to  a 
breach  of  the  public  faith,  and  afford  just  cause 
of  war.  That  department  of  the  government 
which  is  intrusted  with  the  power  of  making 
treaties  may   bind  the  national   faitli  at  its  dis. 


CONSTITUTIONAL  JURISPRUDENCE.     185 

cretion  ;  for  the  treaty-making  power  must  be  co- 
extensive with  the  national  exigencies,  and  neces- 
sarily involves  in  it  every  branch  of  the  national 
sovereignty,  of  which  the  operation  may  be  ne- 
cessary to  give  effect  to  negotiations  and  com- 
pacts with  foreign  nations.  i[  a  nation  have 
conferred  on  its  executive  department,  without 
reserve,  the  right  of  treating  and  contracting 
with  other  sovereignties,  it  is  considered  as  hav- 
ing invested  it  with  all  the  power  necessary  to 
make  a  valid  contract,  because  that  department 
is  the  organ  of  the  government  for  the  purpose, 
and  its  contracts  are  made  by  the  deputed  will 
of  the  nation.  The  fundamental  laws  of  the  state 
may  withhold  from  it  the  power  of  alienating  the 
public  domain,  or  other  property  belonging  to  it ; 
but  if  there  be  no  express  provision  of  that  kind, 
the  inference  is  that  it  has  confided  to  the  de- 
partment, charged  with  the  duty  and  the  power 
of  making  treaties,  a  discretion  commensurate 
with  all  the  great  interests  of  the  nation.* 

The  concurrence  of  each  branch  of  the  legis- 
lative power,  we  have  seen,  is  necessary  to  a 
declaration  of  war,  while  the  President,  with  the 
advice  and  consent  of  the  Senate  alone,  may 
conclude  a  treaty  of  peace.  Now  a  power  to 
make  treaties  necessarily  implies  a  power  to 
settle  the  terms  on  which  they  shall  be  conclu- 
ded 5  and  foreign  states  could  not  deal  safely 
with  the  government  on  any  other  presumption. 
That  branch  of  the  government  which  is  in- 
trusted thus  largely  and  generally  with  authori- 
ty to  make  valid  treaties  of  peace,  can,  of  course, 
bind  the  nation  by  the  alienation  of  part  of  its 
P 


186  LECTURES    ON 

territorj^ ;  and  this,  according  to  an  approved  wri 
ter  on  the  law  of  nations,*  is  equally  the  case, 
whether  that  territory  be  already  in  the  occupa- 
tion of  the  enemy,  or  remain  in  possession  of  the 
nation,  or  whether  the  property  be  public  or  pri- 
vate. In  a  case  decided  in  the  Supreme  Court 
of  the  United  States,  it  was  admitted  that  indi- 
vidual rights  acquired  by  war,  and  vested  rights 
of  the  citizen,  might  be  sacrificed  by  treaty  for 
national  purposes. f  And  in  another  case  it  was 
held  to  be  a  clear  principle  of  national  law,  that 
private  rights  might  be  surrendered  by  treaty  to 
secure  the  public  safety,  but  the  government 
would  be  bound  to  make  compensation  and  in- 
demnity to  the  individual  whose  rights  had  thus 
been  sacrificed. 

The  conclusion  of  a  treaty  of  commerce  and 
navigation  with  Great  Britain,  in  1794<,  gave  rise 
to  much  public  discussion  as  to  the  nature  and 
extent  of  the  treaty-making  power.  A  resolu- 
tion was  passed  by  the  House  of  Representatives 
requiring  the  President  to  lay  before  them  a  copy 
of  his  instructions  to  the  minister  who  conduct- 
ed the  negotiation,  with  the  correspondence,  and 
other  documents,  relative  to  the  treaty,  except. 
ing  such  papers  as  any  existing  negotiations 
might  render  it  improper  to  disclose.  The  illus- 
trious individual  who  then  held  the  office  of  Pres- 
ident returned  for  answer,  ''that,  in  his  opinion, 
the  power  of  making  treaties  was  exclusively 
vested  in  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  provided  two  thirds 
of  the  senators  present  concurred  in  the  ratifica- 
tion 5  and  that  any  treaty  so  made  and  ratified 

*  Vattel,  b.  i.,  ch.  xxi.,  i)  2,  32 ;  b.  iv.,  ch  ii.,  ^11,12. 
t  1  Cranch.,  103. 


CONSTITUTiONAr.    JURISPRUDENCE.  187 

on  being  duly  pronnulgated,  became  the  law  of 
the  land.  It  was  thus,"  he  added,  *'  that  the 
treaty-making  power  had  been  understood  by 
foreign  nations;  and  that  in  all  treaties  made 
with  them,  we  had  declared,  and  they  had  be- 
lieved, that  when  so  ratified,  they  became  obli- 
gatory on  the  nation."  In  this  construction  of  the 
Constitution,  every  former  House  of  Represent- 
atives had  acquiesced,  and  until  that  time  not  a 
doubt  or  suspicion  had  appeared,  to  his  knowl- 
edge, that  it  was  held  not  to  be  the  true  con- 
struction ;  and  he  concluded  by  observing  that 
"it  was  perfectly  clear  to  his  understanding,  that 
the  consent  of  the  House  of  Representatives  was 
not  necessary  to  the  validity  of  a  treaty.  As 
the  treaty  in  question  exhibited  in  itself  all  the  ob- 
jects requiring  legislative  provision,  upon  which 
the  papers  called  for  could  throw  no  light,  and 
that,  as  it  was  essential  to  the  due  administration 
of  the  government  that  the  boundaries  fixed  by 
the  Constitution  between  the  different  depart- 
ments should  be  preserved,  a  just  regard  to  the 
Constitution,  and  to  the  duties  of  his  office,  for- 
bade a  compliance  with  their  request." 

The  principles  thus  laid  down  by  General 
Washington  were  so  far  acquiesced  in  by  the 
House,  that  they  passed  a  resolution,  disclaim- 
ing the  power  to  interfere  in  making  treaties  ; 
but  asserting  the  right  of  the  House  of  Repre- 
sentatives, whenever  stipulations  are  made  on 
subjects  committed  by  the  Constitution  to  Con- 
gress, to  deliberate  on  the  expediency  of  carry- 
ing them  into  effect  ;  and  subsequently  it  was 
declared,  by  a  small  majority,  to  be  expedient  to 
pass  the  laws  necessary  for  carrying  the  treaty 
into  efi'ect.     From    that   time  the   question    re 


188  LECTURES    ON 

mained  undisturbed  until  the  conclusion  of  a 
convention  with  Great  Britain,  in  1815,  when 
the  House  of  Kepresentatives,  after  much  debate, 
passed  a  bill  specifically  enacting,  on  a  particu- 
lar subject,  the  same  provisions  which  were  con- 
tained as  stipulations'  in  the  treaty.  This  dan- 
gerous innovation  on  the  treaty-making  power 
was  warmly  opposed  by  a  minority  in  the  House, 
and  disagreed  to  by  the  Senate  ;  but,  after  sev- 
eral conferences  between  them,  the  affair  termi- 
nated in  a  compromise,  which  it  is  difficult  to 
reconcile  with  a  sound  construction  of  the  Con- 
stitution. The  law  passed  on  the  occasion  brief- 
ly declares  that  so  much  of  any  act  as  imposes 
a  duty  on  tonnage,  contrary  to  the  provisions  of 
the  convention  with  Great  Britain,  should, /row 
the  date  of  that  instrument^  and  during  its  continu- 
ance, be  of  no  force  or  effect ;  thus  setting  a 
precedent  which  may  produce  future  difficulty  in 
our  national  legislation,  though  the  judicial  tri- 
bunals would  probably  regard  such  a  law  as  a 
5^k  of  supererogation,  or  a  mere  nullity,  and, 
.rom  its  retroactive  operation,  at  variance  with 
the  spirit  of  the  Constitution. 

Treaties  of  every  kind,  when  made  by  compe- 
)  t  authority,  are  not  only  to  be  observed  with  the 
most  scrupulous  good  faith,  but  are  to  receive  a 
fair  and  liberal  interpretation.  Their  meaning  is 
to  be  ascertained  by  the  same  rules  of  construc- 
tion and  course  of  reasoning  as  are  applied  to  the 
interpretation  of  private  contracts ;  and,  accord- 
ing to  the  most  authoritative  writers  on  interna- 
tional law,  if  a  treaty  should  be  in  fact  violated 
by  one  of  the  parties,  either  by  proceedings  in- 
compatible with  its  nature,  or  by  an  intentional 
breach  of  any  of  its  articles,  it  res^s  with  the  in- 


CONSTITUTIONAL   J^lSPRlflfeii^E.'^Xl  89 

[ '  ^  J^T  J.     ^  /     ^  '^'^i,X 
jured  party  alone  to  proriouncis  it -broken.    "^KJk 

treaty,"  in  such  cases,  is  ri^t  absolutely  void^  M^\ 
voida  le  at  the  election  of  the  injured  party^^lT 
he  chooses  not  to  come  to  aXupture,  the  tretiti 
remains  obligatory.  He  may  waive  or  remit ^ 
the  infraction,  or  demand  a  just  satisfaction.  But 
the  violation  of  any  one  article  of  a  treaty  is  n 
violation  of  the  whole  ;  for  all  its  articles  are  de- 
pendant on  each  other,  and  are  to  be  deemed 
mutual  conditions  of  each  other;  and  the  breach 
of  a  single  article  may,  at  the  election  of  the  in- 
jured party,  overthrow  the  whole  treaty.  This 
consequence  may,  however,  be  prevented  by  an 
express  provision  in  the  treaty  itself,  that  if  one 
article  be  broken,  the  others  shall,  nevertheless, 
continue  in  full  force ;  and  in  such  a  case.  Con- 
gress could  not  annul  the  treaty  on  the  ground 
of  the  breach.  The  nullification  of  a  treaty  by 
an  act  of  the  legislative  power,  under  the  cir- 
cumstances which  render  such  an  act  justifiable, 
or  its  termination  by  war,  does  not  divest  rights 
of  property  acquired  under  it,*  Nor  do  treaties 
become,  ipso  facto^  extinguished  by  war  between 
the  parties.  Those  articles  which  stipulate  for 
a  permanent  arrangement  of  territorial  or  other 
national  rights,  are,  at  most,  suspended  during 
the  war,  and  revive  at  the  restoration  of  peace, 
unless  waived  by  the  parties,  or  new  or  repug- 
nant arrangements  are  made  in  a  new  treaty. 

The  supplementary  power  of  sending  and  re- 
ceiving ambassadors,  and  other  public  ministers 
and  consuls,  results  as  a  necessary  incident  to 
the  leading  part  in  the  treaty-making  power  as- 
signed to  the  President ;    and   it  was  first  ex 

*  e  Wheaton,  492. 


190  LEOTLRJLS    Or% 

ercised  by  General  Washington,  who  broke  ofl 
all  intercourse  with  Citizen  Genet^  and  demand- 
ed his  recall  by  the  French  government,  in  con- 
sequence of  his  insolent  assumption  of  authority 
to  commission  private  vessels  of  war,  equip  them 
in  our  ports,  and  erect  consular  tribunals,  with 
admiralty  jurisdiction,  within  our  territory.  The 
only  instance  of  the  kind  which  has  since  oc- 
curred was  that  of  the  British  minister,  Mr. 
Francis  Jackson,  who  had  previously  obtained 
some  notoriety  at  Copenhagen,  and,  by  his  con- 
duct on  his  extraordinary  mission  to  this  coun- 
try relative  to  the  attack  on  the  Chesapeake  frig- 
ate by  a  British  line-of-battle  ship,  fully  vindica- 
ted the  nom  de  guerre  which  he  had  earned  by 
an  attack  of  a  similar  character,  though  on  a  lar- 
ger scale,  which  he  had  promoted  and  sanctioned 
on  the  former  occasion.  It  was  very  generally 
believed  that  he  was  selected  by  Mr.  Canning  as 
envoy  to  the  United  States  in  consequence  of 
the  celebrity  he  had  gained  in  the  Baltic ;  but  a 
better  motive  was  found  in  England,  in  the  pri- 
vate friendship  existing  between  the  secretary 
of  state  and  his  envoy,  derived  from  the  grati- 
tude of  Mr.  Canning  to  the  father  of  his  friend, 
Dr.  Cyril  Jackson,  dean  of  Christ  Church,  Ox- 
ford,* under  whose  tuition  he  had  been  at  that 
university.  Be  this  as  it  may,  the  son  behaved 
in  this  country  as  unlike  as  possible  to  w^hat  the 
conduct  and  manners  of  his  father  would  have 
been  in  such  a  situation  ;  and  in  consequence  of 
his  insolence,  he  was  dismissed  by  Mr.  Madi- 
son. 

II.  The  power  to  define  and  j)unish  piracies  and 

*  The  character  of  this  learned  and  aV)le  man  is  admira  ily  and 
faithfully  drawn  in  Mr.  Ward's  novel  of  "  Ih  V'ctc." 


CONSTITUTIONAL    JUIIISPRUDENCE  191 

ftlonies  committed  on  the  high  seas^  and  offences 
against  the  law  of  nations,  is  substantively  and 
separately  vested  in  Congress  j  although,  as  to 
the  former  objects,  it  seems  unavoidably  incident 
to  the  power  of  regulating  foreign  commerce  ; 
and,  as  to  the  latter,  to  be  implied  from  the  au- 
thority to  declare  war  and  make  treaties. 

The  power  to  define  as  well  as  punish  seems 
rather  applicable  to  felonies  and  ofiences  against 
the  law  of  nations  than  to  piracies,  as  piracy  is 
well  defined  by  the  law  of  nations  ;  and  by  the 
high  seas  is  understood  not  only  the  ocean  out  of 
sight  of  land,  but  waters  on  the  seacoast  beyond 
the  boundary  of  low-water  mark. 

Piracy,  according  to  the  most  approved  wri- 
ters on  international  law,  consists  in  robbery,  or 
a  forcible  depredation  on  the  high  seas,  without 
lawful  authority.  But  felonies  on  the  ocean, 
or  on  waters  on  the  coast,  beyond  low-water 
mark,  and  offences  against  international  law, 
are  by  no  means  completely  ascertained  and  de- 
fined by  any  code  recognised  by  the  common 
consent  of  nations  5  so  that,  with  respect  to  this 
species  of  offence,  there  was  a  peculiar  fitness 
in  granting  to  Congress  the  powder  to  define  as 
well  as  to  punish.  Nor,  in  executing  the  power 
inregard  to  piracy,  was  it  necessary  for  Congress 
to  insert  in  the  statute  a  definition  of  the  crime 
in  terms;  it  was  enough  to  refer  for  its  definition 
to  the  law  of  nations,  as  it  is  there  defined  with 
reasonable  certainty,* and  does  not  depend  on  the 
particular  provisions  of  any  municipal  code,  ei- 
ther for  its  definition  or  its  punishment.*  Con- 
gress has  the  right  to  pass  laws  to  punish  pirates, 

*  5  Wheaton,  153. 


192  .  LECTURES    ON 

though  they  may  be  foreigners,  and  have  com- 
mitted no  particular  offence  against  the  United 
States  5  and  in  executing  this  power,  it  has  de 
clared,  in  conformity  with  the  law  of  nations, 
that  the  punishment  of  piracy  shall  be  leath. 
The  act  of  Congress,  which  declares  certain  of- 
fences to  be  piracy  which  are  not  so  by  the  law  of 
nations,  was  intended  to  punish  them  at  offences 
against  the  Unite ^  States,  and  not  as  )ffences 
against  the  human  race  ;*  and  such  an  offence, 
committed  by  a  person  not  a  citizen  of  the  United 
States,  on  board  of  a  vessel  belonging  exclusively 
to  subjects  of  a  foreign  state,  is  not  piracy  under 
the  statute,  nor  punishable  in  the  Federal  Courts 
The  offence,  in  such  cases,  must  be  left  to  be 
punished  by  the  nation  under  whose  flag  the 
vessel  sails,  and  whose  particular  jurisdiction 
extends  to  all  on  board ;  for  it  is  a  clear  and  set- 
tled principle,  that  the  jurisdiction  of  every  na- 
tion extends  to  its  own  citizens,  on  board  of  its 
own  public  and  private  vessels,  at  sea.f  But 
murder  and  robbery  committed  on  the  high  seas 
by  persons  on  board  of  a  vessel  not  at  the  time 
belonging  to  any  foreign  power,  but  in  possession 
of  a  crew  acting  in  defiance  of  all  law,  and  ac- 
knowledging obedience  to  no  government,  is 
within  the  act  of  Congress,  and  punishable  in  the 
courts  of  the  United  States ;  for  although  the 
statute  does  not  apply  to  offences  committed 
against  the  particular  sovereignty  of  a  foreign 
power,  and  on  board  of  a  vessel  belonging  at  the 
time,  in  fact  as  well  as  of  right,  to  a  subject  of  a 
foreign  state,  and  in  virtue  of  such  property  sub- 
ject to  his  control,  yet  it  does  extend  to  all  of- 
fences committed  against  all  nations,  by  persons 
*  3  Wheaton  CIO.         f  Rutherford's  Inst.,  b,  li.,  ch,  xi. 


CONSTITUTIONAL    JURISPRUDENCE.  193 

who,  by  common  consent,  are  amenable  to  the 
laws  of  all  nations.* 

In  pursuance  of  this  principle,  the  moment  a 
vessel  assumes  a  piratical  character,  she  loses 
all  claim  to  national  character,  and  the  crew, 
whether  citizens  or  foreigners,  are  equally  pun- 
ishable under  the  statute,  for  acts  which  it  de- 
clares to  be  piracy.  The  laws  of  the  United 
States  declare  those  acts  piracy  on  one  of  their 
own  citizens,  which  would  be  merely  belligerant 
acts  if  committed  on  a  foreigner ;  and  a  citizen 
of  the  United  States  who  offends  against  the 
government  or  his  fellow-citizens,  under  colour 
of  a  foreign  commission,  is  punishable  in  the 
same  manner  as  if  he  had  no  commission.  The 
acts  of  an  alien,  under  the  sanction  of  a  national 
commission,  maybe  hostile,  and  his  government 
may  be  responsible  for  them,  but  they  are  not 
regarded  as  piratical;  and  this  rule  extends  to 
the  Barbary  powers,  who  are  now  regarded,  by 
the  law  of  nations,  as  lawful  powers,  and  not  as 
they  deserve  to  be,  pirates. 

Felony^  when  committed  on  the  high  seas, 
amounts  in  effect  to  piracy,  and  has,  to  a  consid- 
erable extent,  been  so  declared  by  Congress, 
who,  in  pursuance  of  the  authority  vested  in 
them  by  the  Constitution,  have  enacted  that  any 
person,  on  the  high  seas,  or  in  any  open  road- 
stead or  bay  where  the  sea  ebbs  and  flows,  com- 
mitting the  crime  of  robbery  in  and  upon  any 
vessel,  or  its  crew  or  lading,  shall  be  adjudged  a 
'pirate;  and  farther,  that  "if  any  person  con- 
cerned in  any  piratical  cruise  or  enterprise,  or  be- 
ing of  the  crew  or  ship's  company  of  any  piratical 
ship  or  vessel,  shall  land  and  commit  robbery  on 
*  5  Wheaton.  J  44.     Laws  of  U.  S.,  1820,  (j  3 


194  LECTURES    ON 

shore,  such  person  shall  be  adjudged  Ti  pirate  f^  m 
which  last  respect,  the  statute  seems  to  be  mere- 
jy  declaratory  of  the  law  of  nations.* 

The  power  to  define  and  punish  piracy  and 
felonies  on  the  high  seas  is  exclusive  in  its  na- 
ture j  but  it  has  been  doubted  whether  the  power 
to  punish  other  offences  against  international  law 
ought  not  to  be  considered  as  exclusively  vest- 
ed in  Congress,  on  the  ground  that  the  law  of 
nations  forms  a  part  of  the  common  law  of  every 
state  in  the  Union,  and  that  violations  of  it  may 
be  committed  on  land  as  well  as  at  sea.  The 
jurisdiction  of  the  several  states  is  certainly  su- 
perseded in  regard  to  those  offences  against  in- 
ternational law  which  are  committed,  at  sea  j  but 
it  does  not  seem,  however,  to  follow,  as  a  neces- 
sary consequence,  that  it  is  also  superseded  in 
regard  to  those  committed  on  shore.  These  of- 
fences are  of  various  kinds,  and  the  power  to  de- 
fine and  punish  them  is,  with  great  propriety, 
given  to  Congress,  as  it  prevents  difficulties 
which  might  arise  from  the  doubt  of  a  concur* 
rent  jurisdiction  of  them  by  the  states  \  and,  so  far 
as  they  have  been  defined  by  Congress,  they  may 
be  said  to  arise  under  the  Constitution  and  laws 
of  the  United  States,  and  to  be  finally,  if  not  ex- 
clusively, cognizable  under  the  Federal  authority. 

But  there  are  some  such  oflences  not  enumer- 
ated in  the  acts  of  Congress  ;  and  if  the  doctrine 
be  sound,  that  the  criminal  jurisdiction  of  the 
Union  is  confined  to  cases  expressly  provided 
for  by  Congress,  either  those  violations  of  inter- 
national law,  of  which  the  punishment  remains 
unprovided  for  by  Congress,  must  go  unpunished, 
or  the  state  courts  must  entertain  juri-dictioo 
*  Doug.,  015. 


CONSTITUTIONAL    JURISPRUDENCE.  195 

of  them.  The  United  States  being  alone  re- 
sponsible to  foreign  nations  for  all  that  affects 
their  nnutual  intercourse,  it  rests  with  the  Na- 
tional Government  to  declare  what  shall  consti- 
tute offences  against  the  law  regulating  that  in- 
tercourse, and  to  prescribe  suitable  punishments 
for  their  commission.  But  if  cases  arise  for 
which  no  provision  has  been  made  by  Congress, 
both  the  national  and  state  governments,  within 
the  spheres  of  their  respective  jurisdictions,  are 
thrown  upon  those  general  principles,  which,  be- 
ing enforced  by  other  nations,  those  nations  have 
a  right  to  require  to  be  applied  in  their  favour. 

The  offences  falling  more  immediately  under 
the  cognizance  of  the  law  of  nations  are,  besides 
piracy,  violations  of  safe-conducts^  and  infringe- 
ments  of  the  rights  of  ambassadors  and  other  public 
ministers. 

A  safe-conduct  or  passport  contains  a  pledge 
of  the  public  faith  that  it  shall  be  duly  respect- 
ed, and  the  observance  of  this  duty  is  essential 
to  the  character  of  the  government  which  grants 
it.  In  furtherance  of  the  general  sanction  of 
public  law.  Congress  has  provided  that  persons 
violating  a  safe-conduct  or  passport  granted  by 
the  government  of  the  United  States,  shall,  on 
conviction,  be  subjected  to  fine  and  imprison- 
ment. The  same  punishment  is  inflicted  upon 
persons  offering  violence  to  ambassadors  or  oth- 
er public  ministers,  or  being  concerned  in  prose-  " 
cuting  or  arresting  them  ;  and  the  process  where- 
by their  persons,  or  those  of  their  domestics, 
may  be  imprisoned,  or  their  goods  seized  or  at- 
tached, is  declared  void.  The  policy  of  these 
laws  regards  such  proceedings  against  foreign 
ministers  as  highly  injurious  to  a  free  and  libera] 


196  LECTURES    ON 

communication  between  difterent  governments, 
and  mischievous  in  their  consequences  to  any 
nation.  They  tend,  most  certainly,  to-  provoke 
the  resentment  of  the  sovereign  whom  the  en- 
voy represents,  and  to  bring  upon  the  country 
the  calamity  of  war ;  and,  therefore,  every  civil- 
ized nation  has  an  equal  interest  in  upholding 
the  privileges  of  their  representatives  abroad, 
and  punishing  the  breaches  of  them  by  its  own 
citizens. 

III.  The  power  of  regulating  foreign  commerce 
is  intimately  connected  with  the  power  of  conclu- 
ding treaties,  especially  those  of  commerce  and 
navigation,  and  is,  with  equal  propriety,  submit- 
ted to  the  National  Government. 

The  oppressed  and  degraded  state  of  com- 
merce before  the  adoption  of  the  Federal  Consti- 
tution, and  the  injury  it  sustained  from  the  impo- 
tent and  disconnected  efforts  of  the  several  states 
to  counteract  the  restrictions  imposed  on  it  by  for- 
eign nations,  with  a  view  to  their  own  interests, 
contributed  more,  perhaps,  to  the  introduction  of 
our  present  system  of  government,  than  any  other 
of  the  numerous  evils  proceeding  from  the  feeble- 
ness of  the  Confederation.  The  former  Congress, 
indeed,  possessed  the  power  of  making  commer- 
cial treaties,  but  its  inability  to  enforce  them 
rendered  that  power,  in  a  great  degree,  useless ; 
and  all  who  were  capable  of  estimating  the  influ- 
ence of  commerce  on  national  prosperity,  per- 
ceived the  necessity  of  giving  the  control  over 
ihis  important  subject  to  the  General  Govern- 
ment, [t  is  not,  therefore,  matter  of  surprise, 
that  the  grant  should  be  as  extensive  as  the  mis- 
chiefs that  had  been  experienced  ;  and  it  is 
equally  apparent  that  to  construe  the  grant  so 


C0NST1TUT10^^\L    JURISPRUDENCE.  197 

as  to  impair  its  efficacy,  would  tend  to  defeat  an 
object  in  the  attainment  of  which  the  American 
people  felt  that  deep  interest  which  arose  from 
a  strong  and  just  conviction  that  the  whole  com- 
Tierce  of  the  nation  should  be  regulated  by  Con- 
gress. From  its  very  nature,  this  power  must  be 
considered  «s  exclusive  ,  for  if  the  several  states 
had  retained  the  right  of  regulating  their  own 
commerce,  each  of  them,  as  experience  had  indi- 
cated, would  probably  have  pursued  a  different 
system  ;  mutual  jealousies,  rivalries,  restrictions, 
and  prohibitions  would  have  ensued,  which  a  com- 
mon superior  alone  could  prevent  or  cure,  and, 
at  the  same  time,  command  that  confidence  of 
foreign  nations,  which  is  necessary  to  the  nego- 
tiation of  commercial  treaties. 

But  the  nature  and  extent  of  this  power  has 
been  fully  and  ably  discussed,  and  satisfactorily 
settled  by  the  Supreme  Court  of  the  United 
States,  especially  in  a  case  which  drew  in  ques- 
tion, and  overruled  the  constitutionality  of  the 
laws  of  New-York,  vesting  in  certain  individu- 
als the  exclusive  right  of  steam  navigation  upon 
its  waters.*  On  that  occasion  it  was  held,  that 
the  general  power  to  regulate  commerce  was  not 
restricted  merely  to  the  buying  and  selling  or 
exchanging  commodities,  but  included  the  nav- 
igation of  vessels,  and  commercial  intercourse  in 
all  its  branches,  and  extended  to  all  vessels,  by 
whatsoever  force  propelled,  and  to  whatever  pur- 
pose appropriated.  It  was  observed  by  the  ven- 
erable  and  lamented   Chief-justice  Marshall,  in 

*  19  Wheaton,  446.  Having  beer  consulted  by  the  late  Mi- 
Gibbons  before  he  determined  to  try  the  validity  of  this  grant,  it 
may  not  be  improper  to  subjoin  the  opinion  given  on  that  ocra 
sion.     Vide  Appendix  F. 


198  LECTURES    ON 

delivering  the  opinion  of  the  court,  that,  if  com 
merce  did  not  include  navigation,  the  govern 
ment  of  the  Union  had  no  direct  power  ovei 
that  subject,  and  could  make  no  law  prescribing 
the  requisites  to  constitute  American  vessels,  or 
require  them  to  be  navigated  by  American  sea- 
men ;  yet  this  power  had  been  exercised  from  the 
beginning  of  the  government,  with  the  universal 
consent  of  the  states  and  of  the  Union,  and  had 
been  as  universally  understood  to  be  a  commer- 
cial regulation.  The  word  commerce^  indeed,  must 
have  been  understood  to  comprehend  navigation 
when  the  Constitution  was  adopted,  as  the  pow- 
er over  both  was  one  of  the  primary  objects  for 
which  the  Constitution  was  formed ;  and  in  that 
comprehensive  sense  is  the  term  used  in  the  Con- 
stitution. It  is  a  rule  of  construction  universal- 
\Y  acknowledged,  that  the  exceptions  from  a  pow- 
er mark  its  extent ;  for  it  would  be  absurd  as  well 
as  useless  to  except  from  a  power  granted,  that 
which  the  words  of  the  grant  could  never  com- 
prehend. If,  therefore,  the  Constitution  contains 
plain  exceptions  from  the  power  over  naviga- 
tion— plain  inhibitions  against  the  exercise  of 
that  power  in  a  particular  way — it  is  evident  that 
the  power  to  whicl^  they  apply  must  have  been 
intended  to  have  been  granted. 

The  power  to  regulate  commerce,  thus  under- 
stood, is  held  to  extend  to  every  species  of  com- 
mercial intercourse  between  the  United  States 
and  foreign  nations,  and  among  the  states;  and 
although  the  expressions  relative  to  the  states 
were  not  intended  to  comprehend  that  commerce 
which  is  completely  internal,  and  carried  on  be- 
tween individuals  in  a  state,  or  different  parts  ol 
the  same  state,  without  extending  to,  or  affect^ 


CONSIITUTIONAL    JURISPRUDENCE.  199 

ing  Other  states,  yet,  in  regulating"  commerce 
with  foreign  nations,  the  power  of  Congress  does 
not  stop  at  the  jurisdictional  lines  of  the  several 
states.  It  would  be  a  very  useless  power  if  it 
could  not  pass  those  limits.  The  commerce  of 
the  United  States  with  foreign  nations  is  the 
commerce  of  the  whole  Union,  and  every  district 
has  a  right  to  participate  in  it.  The  deep  streams 
v^^hich  penetrate  our  country  in  every  directioii 
pass  through  the  interior  of  almost  every  state  in 
the  Union,  and  furnish  the  means  of  exercising 
this  right.  If  Congress  have  the  power  to  regu- 
late, that  power  must  be  exercised  wherever  the 
subject  exists.  If  it  exist  within  the  states — if  a 
foreign  voyage  may  commence  or  terminate  at  a 
port  within  a  state-^then  the  power  of  Congress 
may  be  exercised  within  a  state. 

The  power  to  prescribe  the  rule  by  which  com- 
merce is  to  be  governed,  like  all  other  powers 
vested  in  Congress,  is  complete  in  itself,  and  may 
be  exercised  to  its  utmost  extent,  without  any 
limitations  but  such  as  are  prescribed  in  the  Con- 
stitution. The  restrictions  on  the  powers  of  Con- 
gress are  there  plainly  expressed,  and  not  one  of 
them  affects  the  power  in  question.  If,  then,  as 
has  always  been  understood,  the  sovereignty  of 
Congress,  though  limited  to  specific  objects,  be, 
nevertheless,  plenary  as  to  those  objects,  the 
power  over  commerce  w^ith  foreign  nations,  and 
among  the  several  states,  is  as  absolutely  vested 
in  the  government  of  the  Union,  as  it  would  be 
in  the  government  of  any  single  state,  if  the  Union 
did  not  exist,  and  the  state  Constitution  had  con- 
tained the  same  restrictions  on  the  exercise  of 
the  legislative  power  as  are  found  in  the  Consti- 
tution of  the  United  States.     The  wisdom  and 


200  LECTURES    ON 

the  discretion  of  Congress  5  the  identity  of  its 
members  with  the  people  j  and  their  dependance 
on  their  constituents,  are  in  this  instance,  as  in 
that  of  declaring  war,  and  many  others,  the  sole 
restraints  upon  which  the  community  have  relied 
to  secure  them  from  the  abuse  of  the  power  they 
have  granted  ;  and  such  are  the  securities  upon 
which  the  people  must  often,  of  necessity,  rely 
in  all  representative  governments. 

From  these  considerations,  the  power  of  Con- 
gress was  held  to  comprehend  navigation  within 
the  limits  of  every  state  in  the  Union,  so  far  as 
that  navigation  may  be  in  any  manner  connected 
with  "  commerce  with  foreign  nations,  or  among 
the  several  states,  or  with  the  Indian  tribes." 
Although  this  extensive  power,  like  many  other 
of  the  powers  formerly  exercised  by  the  several 
states,  is  now  transferred  to  the  government  of 
the  Union,  yet  the  state  governments  constitute 
an  important  part  of  our  system,  and  have  retain- 
ed a  concurrent  power  of  legislation  over  many 
subjects  of  Federal  jurisdiction.  The  power  of 
taxation,  for  instance,  is  indispensable  to  their 
existence,  and  is  a  power  which  in  its  own  nature 
is  capable  of  residing  in,  and  of  being  exercised 
by,  different  authorities  at  the  same  time.  But 
the  power  of  Congress  to  lay  and  collect  taxe? 
and  duties  for  the  purposes  of  the  Union  doe? 
not,  as  we  have  seen,  necessarily  interfere  Avith 
the  power  of  the  states  to  impose  taxes  for  state 
objects;  nor  is  the  exercise  of  that  power  by  the 
states  an  exercise  of  any  portion  of  the  power 
granted  to  the  United  States.  In  imposing  taxes 
for  state  purposes,  the  state  legislatures  are  not 
exercising  a  power  vested  in  them  even  concur- 
rently with  Congress ;    for  Congress  is  not  em- 


CONSTITU'I'IONAL    J[JRISPIIUDENCE.  20 J 

powered  to  levy  taxes  for  objects  within  the  ex- 
clusive province  of  the  states.  Each  government 
therefore,  when  it  respectively  exercises  its  prop- 
er power  of  taxation,  does  not  exercise  the  power 
of  the  other.  But  when  a  state  proceeds  to  reg- 
ulate commerce  with  foreign  nations,  or  among 
the  several  states,  it  exercises  the  identical  pow- 
er which  is  granted  to  the  Union,  and  does  the 
very  thing  that  Congress  is  authorized  to  do. 
The  sole  question,  then,  is,  whether  the  states 
can  exercise  the  power  of  regulating  commerce 
concurrently  with  the  U?iited  States. 

It  was  insisted,  in  the  case  last  referred  to,  that 
the  states  possessed  such  concurrent  power,  and 
the  party  maintaining  the  proposition  relied  on 
the  restriction  in  the  Federal  Constitution,  which 
prohibits  the  states  from  laying  duties  on  im- 
ports or  exports.  It  was  alleged,  very  truly,  that 
limitations  of  a  power  furnish  a  strong  argument 
in  favour  of  its  existence,  and  that  the  prohibi- 
tion in  this  case  proved  that  the  power  to  which 
it  related  might  have  been  exercised  had  it  not 
been  expressly  forbidden ;  and  hence  it  was  in- 
ferred that  any  commercial  regulation,  not  ex- 
pressly prohibited,  to  which  the  power  of  the 
state  was  originally  competent,  might  still  be 
made  by  its  Legislature. 

it  was  admitted,  indeed,  on  the  other  hand, 
that  the  restriction  in  question  proved  that  the 
states  might  have  imposed  duties  on  imports  and 
exports,  had  they  not  been  expressly  prohibited  ; 
but  it  was  denied  that  it  followed,  as  a  conse- 
quence from  that  concession,  that  a  state  may 
Regulate  commerce.  The  levying  of  duties  on 
imports  and  exports  w^as  held  to  be  a  branch  of 
the  taxing  power,  and  entirely  distinct  from  the 
Q 


202  LECTURES    ON 

power  to  regulate  commerce.  The  latter  powei 
is  enumerated  in  the  Constitution  subsequently 
to  the  former,  and  each  is  substantively  and  in- 
dependently conferred  on  Congress.  The  power 
of  imposing  duties  on  imports  is  classed  with  the 
power  of  levying  taxes  ;  but  the  power  of  levy- 
ing taxes  conferred  on  Congress,  although  it 
abridges  the  subjects  of  state  taxation,  can  nev- 
er be  considered  as  abridging  the  right  of  the 
states  relative  to  taxation  itself ;  and  they  might, 
consequently,  have  exercised  it  by  levying  duties 
on  imports  and  exports,  had  not  the  Constitution 
forbidden  them.  This  prohibition,  then,  is  an 
exception  from  the  acknowledged  power  of  the 
states  to  levy  taxes,  and  not  from  the  questiona- 
ble power  to  regulate  commerce.  So,  also,  the 
exception  in  the  Constitution,  with  regard  to  du- 
ties on  tonnage,  is  considered  as  a  restriction  on 
the  power  of  taxation,  not  on  that  to  regulate 
commerce  ;  and,  like  the  former  prohibition,  pre- 
supposes the  existence  of  that  Avhich  it  restrains, 
and  not  of  that  which  it  does  not  purport  to  re- 
strain. 

Neither  are  the  state  inspection  laws  regarded 
as  commercial  regulations,  although  they  may 
have  a  remote  and  important  influence  on  com- 
merce, and  are  certainly  recognised  in  the  Con- 
stitution as  proceeding  from  the  exercise  of  a 
power  remaining  in  the  states.  But  these,  togeth- 
er with  quarantine  regulations,  and  health  laws 
of  every  description,  as  well  as  laws  regulating 
the  internal  commerce  of  a  state,  and  those  which 
relate  to  canals,  turnpike-roads,  and  ferries,  are 
component  parts  of  that  .immense  mass  of  legis- , 
Jation  which  embraces  everything  within  the  ter- 
/itory  of  a  state  not  surrendered  to  the  General 


CONSTITUTIONAL    JURISPRUDENCE.  203 

Governmtnt,  and  which,  being  of  a  local  charac- 
ter, can  be  more  advantageously  regulated  by  the 
states  themselves.  No  direct  general  power  be- 
ing given  over  these  subjects  to  Congress,  they 
consequently  remain  subject  to  state  legislation  ; 
and  if  the  legislative  power  of  the  Union  reaches 
them  at  all,  it  is  for  national  purposes,  and  must 
then  be  either  where  the  power  is  expressly  giv- 
en for  a  special  purpose,  or  where  it  is  clearly 
incidental  to  some  power  expressly  given  to  the 
National  Government.  A  state  has  the  same  un- 
deniable and  unlimited  jurisdiction  over  all  per- 
sons and  things  within  its  territorial  limits,  as  any 
foreign  nation,  when  that  jurisdiction  is  not  sur- 
rendered or  restrained  by  the  Federal  Constitu- 
tion. The  laws  of  the  United  States  regulating 
the  transportation  of  passengers  in  vessels  arri- 
ving from  foreign  ports,  are  obviously  regulations 
of  commerce,  as  they  only  affect,  through  the 
power  over  navigation,  passengers  on  their  voy- 
age^ and  until  they  have  landed ;  after  that,  and 
when  they  have  ceased  to  be  passengers,  the  acts 
of  Congress,  applying  to  them  only  as  such,  and 
as  such  only  professing  to  legislate  in  regard  to 
them,  have  then  performed  their  office,  and  can 
with  no  propriety  of  language  be  said  to  come 
into  conflict  with  the  laws  of  a  state  requiring  the 
master  of  every  vessel  arriving  therein  from 
-ibroad  to  make  a  report  in  writing  of  the  names, 
ages,  and  last  legal  settlement  of  his  passengers; 
lOr  such  law  does  not  assume  to  regulate  co?i> 
merce  ;*  its  operation  begins  only  where  the  laws 
of  Congress  end,  and  is  not  even  on  the  same  sub- 
ject ;  for  although  the  persons  on  whom  it  oper- 
ates are  the  same,  yet,  having  ceased  to  be  pas* 
«•  11  Peters,  103. 


204  LECTURES    ON 

sengers,  they  no  longer  stand  in  the  only  relation 
in  which  the  laws  of  Congress  either  professed 
or  intended  to  act  upon  them. 

It  is  obvious,  however,  that  the  government 
of  the  Union,  in  the  exercise  of  its  express  pow 
ers,  may  use  means  which  may  also  be  employ- 
ed by  a  state  in  the  exercise  of  its  acknowledged 
powers.  If  Congress,  for  instance,  license  ves- 
sels to  sail  from  one  port  to  another  in  the  same 
state,  the  act  is  supposed  to  be  necessarily  inci- 
dental to  the  power  expressly  granted  to  regu- 
late commerce  with  foreign  nations  and  among 
the  states,  and  implies  no  claim  of  a  direct  pow- 
er to  regulate  the  purely  internal  commerce  of  a 
state,  or  to  act  directly  on  its  system  of  domes- 
tic police.  So,  if  a  state,  in  passing  laws  on  sub- 
jects acknowledged  to  be  within  its  control,  and, 
with  a  view  to  those  subjects,  adopt  a  measure 
of  the  same  character  with  one  which  Congress 
may  adopt,  the  state  does  not  derive  its  authori- 
ty from  the  residuum  which  it  retains  of  the  par- 
ticular power  granted  to  the  Union,  but  from 
some  other  power  which  remains  with  the  state, 
and  may  be  executed  by  the  same  means  used 
for  the  execution  of  the  power  by  Congress.  All 
experience  shows  that  the  same  measure,  or 
measures,  scarcely  distinguishable  from  each  oth- 
er, may  flow  from  distinct  powers  ;  but  this  does 
not  prove  that  the  powers  are  identical ;  and  al- 
though the  means  used  in  their  execution  may 
sometimes  approach  each  other  so  nearly  as  to 
be  confounded,  thete  are  other  situations  in  which 
they  are  sufficiently  distinct  to  establish  their  in- 
dividuality. 

In  our  complex  system,  presenting  the  rare 
and  difficult  scheme  of  a  Federal  Government, 


CONSTITUTIONAL    JURISPRUDENCE.  205 

fiupreme  over  the  whole  of  its  members,  but  pos- 
sessing only  certain  enumerated  powers,  and  of 
numerous  state  governments,  retaining  and  exer- 
cising all  power  not  delegated  to  the  Federal 
head,  contests  respecting  power  must  necessari- 
ly arise.  Measures  taken  respectively  by  the 
governments  of  the  Union  and  of  the  states,  in 
the  execution  of  their  acknowledged  powers,  must 
often  be  of  the  same  description,  and  may  some- 
times interfere.  But  this  does  not  prove  that  the 
one  is,  in  fact,  exercising,  or  has  a  right  to  exer- 
cise, the  powers  of  the  other.  The  states  may 
sometimes  enact  laws,  the  validity  of  which  may 
depend  on  their  not  interfering  with,  or  being 
contrary  to,  an  act  of  Congress  passed  in  pursu- 
ance of  its  constitutional  powers  ;  in  all  such  ca- 
ses, the  inquiry  is,  whether  the  state  law  has,  in 
its  application,  come  into  collision  with  the  act 
of  Congress ;  and  should  an  actual  collision  be 
found  to  have  take  place,  it  would  be  immaterial 
whether  the  former  were  passed  by  the  state  in 
virtue  of  its  concurrent  power  with  Congress,  oi 
in  virtue  of  a  distinct  and  independent  power  re- 
lating to  a  different  subject :  in  either  case,  the 
act  of  the  State  Legislature,  and  the  right  or 
privilege  conferred  by  it,  must  yield  to  rights  and 
privileges  derived  from  the  act  of  Congress.  It 
was  therefore  held,  in  the  case  referred  to,  that 
a  license  under  the  acts  of  Congress,  for  regula- 
ting the  coasting  trade,  is  not  merely  intended 
to  confer  a  national  character  on  vessels  enga- 
ging in  it,  but  gives  to  them  permission  to  carry 
on  that  trade ;  and  as  the  power  of  Congress  to 
regulate  commerce  extends  to  navigation  carried 
on  in  vessels  exclusively  employed  in  the  trans- 
portation of  passengers,  whether  those  vessels  be 


206  LECTURES    ON 

propelled  by  steam,  or  by  the  instrumentality  of 
wind  and  sails — on  waters  wholly  within  a  state^ 
but  which  may  be  approached  by  the  ocean — a 
case  of  actual  collision  w^as  presented  between 
the  exclusive  privilege  conferred  by  the  state 
law  on  the  one  side,  and  the  authority  to  carry 
on  the  coasting  trade  derived,  on  the  other,  from 
the  act  of  Congress ;  and  in  so  far  as  this  interfe^ 
rence  extended,  the  state  law  was  declared  to  be 
void,  as  repugnant  to  the  Federal  Constitution. 

In  a  subsequent  case,  it  was  laid  down  by  the 
same  authority,  that,  as  the  power  to  regulate 
commerce  thus  reaches  the  interior  of  a  state, 
and  may  there  be  exercised,  it  must  be  capable 
of  authorizing  the  sale  of  those  articles  which  it 
introduces,  because  its  efficacy  would  not  be 
complete  if  it  ceased  to  operate  at  the  point 
where  the  continuance  of  its  operation  is  indis- 
pensable  to  its  value.  The  power  to  allow  im- 
portation would,  indeed,  be  nugatory,  if  unac- 
companied with  the  power  to  authorize  the  sale 
of  the  thing  imported ;  for  sale  is  the  object  of 
importation,  and  an  essential  ingredient  of  that 
commercial  intercourse  of  which  importation  con- 
stitutes a  part,  and  is  as  indispensable  to  the  ex- 
istence of  that  intercourse  as  importation  itself. 
The  right  of  sale,  as  well  as  the  right  to  import, 
was,  therefore,  considered  as  involved  in  the  pow- 
er to  regulate  commerce ;  and  it  was  according- 
ly held  that  Congress  had  a  right,  not  only  to 
authorize  importation,  but  to  authorize  the  im- 
porter to  sell.  An  act  of  the  Legislature  of  Mary- 
land, requiring  all  wholesale  importers  and  sell- 
ers of  foreign  goods  to  obtain  a  license  from  that 
state,  and  to  pay  a  sum  of  money  on  receiving 
it,  was  consequently  adjudged  to  be  void,  as  re* 


CONSTITUTIONAL    JURISPRUDENCE.  207 

pugnant  not  only  to  that  provision  of  the  Federal 
Constitution  which  declares  that  "  no  state  shall, 
without  the  consent  of  (Congress,  lay  any  impost 
or  duty  on  imports  or  exports,"  but  to  that  also 
which  invests  Congress  with  power  "  to  regulate 
commerce."*  The  principles  laid  down  on  this 
occasion  apply  equally  to  importations  from  an- 
other state,  as,  in  both  cases,  the  powers  remain- 
ing in  the  states,  when  so  exercised  as  to  come 
in  conflict  with  those  vested  in  Congress,  that 
which  is  not  supreme  must  yield  to  that  \vhich  is 
This  great  universal  truth  is  inseparable  from  the 
nature  of  things  ;  and  the  Constitution  has  appli- 
ed it  to  the  often  interfering  powers  of  the  Gen- 
eral and  State  Governments,  as  a  vital  principle 
of  perpetual  operation,  so  long  as  the  power  to 
regulate  commerce  is  admitted  to  be  exclusive. 
It  has  been  so  considered  by  every  department 
of  the  government,  and  by  all  classes  of  citizens  in 
every  quarter  of  the  Union,  ever  since  the  adop- 
tion of  the  Federal  Constitution.  It  was,  indeed, 
to  effect  this  transfer  of  power  that  the  Constitu- 
tion was  established.  This  was  the  primary  and 
avowed  motive  for  assembling  the  Convention  of 
1787.  The  exclusive  grant  of  this  power  to  the 
National  Government  was  essential  to  impart  to 
our  shipping  engaged  in  foreign  commerce  its 
nationality  and  protection  \  and  the  surrender  of 
this  power  became,  in  several  of  the  states,  the 
most  formidable  obstacle  to  the  ratification  of 
the  new  Constitution.  The  State  of  New-York, 
where  the  opposition  was  the  strongest,  possess- 
ed the  finest  harbour  on  the  coast  \  the  fertility 
of  its  yet  uncultivated  western  territory  was  al- 

*  9  Wheaton,  1. 


208  LECTURES    ON 

ready  known  5  the  rapid  increase  of  its  popula- 
tion had  been  confidently  anticipated  j  the  tide 
of  immigration  had  begun  to  flow  in  upon  it ;  and 
the  consequent  accession  of  wealth  and  power 
afforded  the  most  seductive  objects  to  gratify 
the  ambition  of  its  statesmen  and  politicians. 
These  causes,  indeed,  combined  to  delay  and 
render  doubtful  its  adoption  of  the  Federal  Consti- 
tution, until  it  was  rendered  certain,  by  the  assent 
of  nine  of  the  thirteen  members  of  the  Confed- 
eration, that  the  new  government  would  go  into 
immediate  operation  among  the  states  which  had 
already  acceded  to  it ;  and  that  the  recusant  states 
would  thereby  be  deprived  of  the  benefits  both  of 
the  former  confederacy,  and  of  the  new  compact 
by  which  it  was  superseded. 

The  power  of  prohibiting  the  importation  of 
slaves  into  the  United  States,  after  a  certain  pe- 
riod had  elapsed,  and  of  imposing  a  duty  on  their 
importation  during  the  intermediate  period,  is  vir- 
tually included  in  the  power  to  regulate  com- 
merce, as  the  exception  which  postponed  its  ex- 
ercise arose  from  an  express  restriction  of  the 
general  power.  The  words  of  the  Constitution 
vesting  this  power  are,  "  The  migration  or  import- 
ation" (not  of  slaves^  for  that  word  is  not  to  be 
found  in  the  Constitution,  but)  "  of  such  persons  as 
any  of  the  states  now  existing  shall  think  proper 
to  admit,  shall  not  be  prohibited  prior  to  the  year 
1808."  It  is  by  no  means  difficult  to  account  ei- 
tiier  for  the  existence  of  this  restriction,  or  for 
the  terms  in  which  it  is  expressed  ;  and  although 
it  is  certainly  to  be  wished  that  the  power  in 
question  had  been  free  from  it,  yet  it  ought  to  be 
remembered  that  a  great  point  was  gained  in  fa- 
vour of  humanity  by  fixing  a  period  for  the  tcr- 


CONSTITUTIONAL    JURISPRUDENCE.  209 

mination  of  this  barbarous  traffic.  Before  the 
time  arrived,  the  interdiction  was  prospectively 
enacted  by  Congress,  and  it  took  effect  in  time 
to  afford  an  example  to  civilized  Europe  of  abol- 
ishing a  species  of  commerce  which  had  been  the 
opprobrium  of  modern  policy.  This  interdiction 
was  followed  up  by  denouncing  the  foreign  slave- 
trade  as  piracy,  and  rendering  it  punishable  with 
death  when  pursued  by  our  own  citizens  j  and, 
by  the  late  treaty  with  Great  Britain,  we  have 
stipulated  to  co-operate  wdth  her,  by  means  of 
our  navy,  to  suppress  it  more  effectually.  But 
still  the  blot  remains;  for,  though  the  toleration 
granted  by  the  Constitution  was  confined  to  the 
states  "then  existing,"  yet  Congress  has  refused 
to  imitate  the  example  of  their  predecessors  un- 
der the  Confederation,  who  prohibited  slavery  in 
the  territories  ceded  by  the  elder  states  for  the 
common  benefit,  by  a  similar  restriction  upon  the 
new  states  created  in  them  ;  it  has  abstained  from 
suppressing  the  domestic  slave-trade,  or  "  the  mi- 
^ration  of  such  persons  as  any  of  the  states  then 
existing  should  think  proper  to  admit,"  which  was 
not  exempted  from  the  power  of  regulating  com- 
merce among  the  states  for  any  longer  period 
than  the  foreign  slave-trade  was  tolerated  as  an 
exception  to  the  power  of  regulating  commerce 
with  foreign  nations.  Nor  has  it  listened  to  the 
numerous  petitions  for  abolishing  slavery  and  the 
slave-trade  in  the  territories  under  its  exclusive 
jurisdiction,  and  especially  in  the  District  of  Co- 
lumbia, the  seat  of  the  National  Government,  the 
residence  of  the  representatives  of  the  foreign 
sovereigns,  and  the  resort  of  strangers  and  visit- 
ers from  all  quarters  of  the  globe.  Yet  the  evil 
is  not  beyond  cure.  A  remedy,  slow  but  sure, 
R 


210  LECTURES    ON 

has  been  for  some  years,  and  still  is,  in  opera- 
tion. Those  of  the  original  states  which  bound 
ed  on  others  from  which  slavery  is  excluded, 
have  been  compelled  to  abandon  slave  labour, 
from  its  inability  to  compete  successfully  with 
the  labour  of  freemen.  Every  year  increases  the 
efficiency  of  this  remedy,  and  the  sphere  of  its 
operation.  Unfortunately,  however,  the  crisis 
has  been  retarded  by  the  untoward  and  rash  in- 
terference of  those  empirical  zealots,  who  claim 
to  be  the  exclusive  friends  and  infallible  advocates 
of  emancipation,  who,  with  the  blindness  of  igno- 
rance, the  virulence  of  bigotry,  and  madness  of 
fanaticism,  denounce  every  man  or  woman  who 
refuses  or  hesitates  to  unite  in  their  measures,  or 
adopt  their  narrow  dogmas.  Nevertheless,  be- 
fore many  years  expire,  the  natural  influence  of 
benevolence,  of  mildness,  and  of  Christian  for- 
bearance and  moderation,  will  advance  in  geo- 
metrical progression,  until  the  foul  blot  on  our 
national  escutcheon  shall  be  removed,  rather  by 
the  hand  of  Providence  than  by  any  act  or  co-op- 
eration of  our  own. 

"  DeuSf  hcBC  fortasse  benigna, 

Reducit  in  sedem,  vice." 


LECTURE  IX. 

ON  THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERN- 
MENT FOR  MAINTAINING  HARMONY  AMONG  THE 
STATES. 

The  authority  vested  in  the  General  Government 
to  provide  for  the  maintenance  of  harmony  and  prop- 
er intercourse  among  the  states,  comprises  the  third 


CONSTITUTIONAL    JURISPRUDENCE.  211 

class  of  powers  enumerated  in  the  Constitution. 
Under  this  head  might  be  induded  the  particular  re- 
straints on  the  authority  of  the  states,  and  certain 
powers  vested  in  the  judicial  department;  but  the 
former  are  reserved  for  a  distinct  head  of  considera- 
tion, and  the  latter  have  already  been  reviewed  in 
our  examination  of  the  structure  and  organization  of 
the  government. 

The  remaining  powers  comprehended  in  this  de- 
scription are, 

First.  To  regulate  commerce  among  the  several 
states,  and  with  the  Indian  tribes. 

Second.  To  establish  postoffices  and  postroads. 

Third,  To  coin  money,  and  regulate  the  value 
thereof,  and  of  foreign  coin  ;  to  fix  the  standard  of 
weights  and  measures. 

Fourth.  To  provide  for  the  punishment  of  coun- 
terfeiting the  securities  and  current  coin  of  the  Uni- 
ted States. 

Fifth.  To  prescribe  by  general  laws  the  manner 
in  which  the  public  acts,  records,  and  judicial  pro- 
ceedings of  one  state  shall  be  proved,  and  the  effect 
they  shall  have  in  another. 

Sixth.  To  establish  uniform  laws  on  the  subject  of 
bankruptcies  ;  and. 

Seventh.  To  establish  a  uniform  rule  on  the  sub- 
ject of  naturalization  throughout  the  United  States. 

I.  The  power  to  regulate  commerce  among  the  states 
had  been  clearly  pointed  out,  by  experience  under  the 
Confederation,  to  be  essential  to  the  General  Gov 
ernment.  Without  this  supplemental  provision,  in- 
deed, the  primary  and  indispensable  power  of  regu- 
lating foreign  commerce  would  have  been  incom- 
plete and  ineffectual,  if  not  altogether  nugatory.  A 
very  material  object  of  the  power  was  to  secure  those 
states  which  import  and  export  through  other  states 


^12  LECTURES     ON 

from  unjust  contributions  levied  on  them  by  the  lat- 
ter. It  was  foreseen  that,  if  the  se\eral  states  were 
left  at  liberty  to  regulate  their  mutual  commerce, 
means  would  be  discovered  or  devised  to  load  arti- 
cles of  produce  and  merchandise,  in  their  transit, 
with  duties  that  would  eventually  fall  on  the  growers 
or  manufacturers  of  the  one,  and  the  consumers  of 
the  other.  Such  practices  had  prevailed,  and  it  was 
justly  apprehended  that  their  continuance  would 
nourish  increasing  animosities,  and  not  improbably 
terminate  in  serious  interruptions  of  the  public  tran 
quillity. 

In  the  important  case  referred  to  in  the  last  lecture, 
the  whole  doctrine  relative  to  the  construction  of  this 
part  of  the  Constitution  was  largely  and  deliberately 
discussed,  and  definitively  and  satisfactorily  settled 
It  was  declared  on  that  occasion,  that  the  power  to 
regulate  commerce  among  the  states  did  not  extend 
to  that  commerce  which  is  completely  internal ;  and 
that,  comprehensive  as  are  the  terms  in  which  it  is 
conferred,  the  power  in  question  is,  nevertheless,  re- 
stricted to  that  commerce  which  concerns  more  states 
than  one.  Those  terms  would  hardly  have  been  se- 
lected to  indicate  the  completely  interior  traffic  of  a 
state,  because  they  are  not  apt  terms  for  that  pur- 
pose ;  and  the  enumeration  of  the  particular  classes 
of  commerce  to  which  the  power  was  to  extend 
would  not  have  been  made,  had  the  intention  been  to 
extend  the  power  to  commerce  of  every  description. 
The  specification  itself  presupposes  something  not 
specified,  and  from  the  language  and  subject  of  the 
clause,  it  would  seem  that  the  exclusively  internal 
commerce  of  a  state  is  not  comprehended.  The 
genius  and  character  of  the  whole  government,  in- 
deed, evince  that  its  action  is  to  be  applied  to  all 
the  external  concerns  of  the  nation,  and   to   those 


CONSTITUTIONAL     JURISPRUDENCE.  213 

internal  concerns  which  affect  the  states  generally, 
but  not  to  those  which  are  completely  within  a  par- 
ticular state,  which  do  not  affect  other  states,  and 
with  which  it  is  not  necessary  to  interfere  for  the 
purpose  of  executing  any  of  the  general  powers  of 
the  Federal  Government. 

The  completely  internal  commerce,  therefore,  of 
every  state  is  reserved  for  the  state  itself.  But  as 
the  power  of  Congress  in  regulating  foreign  com 
merce  does  not  stop  at  the  jurisdictional  lines  of  the 
states,  and  would  be  a  very  useless  power  if  it  did 
not  pass  those  limits,  it  is,  if  possible,  clearer  that 
the  power  to  regulate  commerce  among  the  states  is 
not  limited  by  state  boundaries.  For  not  only  do 
waters  communicating  with  the  ocean  penetrate  into 
the  interior  of  the  country,  and  pass  in  their  course 
through  several  states,  but  in  many  cases — in  the  sig- 
nal instance  of  the  Western  Lakes — there  are  waters 
in  and  upon  the  boundaries  of  several  states,  which 
are  not  navigable  to  the  sea  for  the  purposes  of  for- 
eign commerce,  while  they  furnish  means  of  com- 
mercial intercourse  between  those  states,  and,  conse- 
quently, afford  occasions  to  Congress  for  the  exercise 
of  the  power  in  question.  This  power  must  be  ex- 
ercised wherever  the  subject  exists,  and  if  the  means 
of  commercial  intercourse  among  the  states  exist 
within  a  state — if  a  coasting  voyage  may  commence 
or  terminate  within  a  state — then  the  power  of  Con- 
gress to  regulate  commerce  among  the  several  states 
may  be  exercised  wiihin  a  state. 

The  states  either  join  each  other,  in  which  case 
they  are  separated  by  a  mathematical  line,  or  they  are 
remote  from  each  other,  in  which  case  other  states  lie 
between  them.  How,  then,  it  has  been  asked,  is  com- 
mercial intercourse  between  them  to  be  conducted  ? 
A  trading  expedition  between  two  adjoining  states 


214  LECTURES    ON 

cannot  commence  and  terminate  beyond  iho  limit* 
of  either ;  and  if  the  trading  intercourse  be  between 
two  states  remote  from  each  other,  it  must  commence 
in  one,  terminate  in  another,  and  pass  through  al 
least  a  third.  Commerce  among  the  states  must  of 
necessity,  then,  be  commerce  within  a  state.  In  the 
regulation  of  the  trade  with  the  Indian  tribes,  the  ac- 
tion of  the  law,  especially  when  the  Constitution  was 
made,  was  chiefly  within  a  state ;  and  in  this  case, 
as  well  as  in  regard  to  commerce  among  the  states, 
the  power  of  Congress  is  coextensive  with  the  sub- 
ject on  which  it  acts.  It  cannot,  in  either  case,  be 
stopped  at  the  external  boundary  of  a  state,  but  must 
enter  the  limits,  and  be  exercised  within  the  territo- 
rial jurisdiction  of  all  the  states.  The  grant  of  Con- 
gress, however,  to  regulate  commerce  on  the  navi- 
gable waters  of  the  several  states,  contains  no  ces- 
sion of  territory,  or  of  public  or  private  property  ;  the 
states  may  regulate  the  use  of  fisheries  within  their 
territorial  limits,  though  upon  navigable  waters,  pro- 
vided their  free  use  for  the  purposes  of  navigation  and 
commerce  be  not  interrupted.* 

The  power  of  Congress  to  regulate  commerce 
among  the  states,  extends  to  the  regulation  of  navi- 
gation, and  to  the  coasting  trade,  and  fisheries  with- 
in, as  well  as  without  any  state,  wherever  they  are 
connected  with  the  commercial  intercourse  with  any 
other  state,  or  with  foreign  nations.  It  extends  also 
to  the  regulation  and  government  of  seamen  ;  to  con- 
ferring privileges  upon  vessels  engaged  in  the  coast- 
ing trade  ;  and  to  the  navigation  of  vessels  engaged 
solely  in  carrying  passengers,  as  well  as  to  those  en-^ 
gaged  in  traffic,  whetl  fer  propelled  by  steam  or  oth- 
erwise. 

*  4  Wash.  Cir.  Kep.,  371. 


cojNSTItutional  jurisprudence.       215 

The  principles  laid  down  in  another  case,  also  re- 
ferred to  in  my  last  lecture,  where  an  act  of  a  legis- 
lature requiring  importers  and  venders  of  foreign 
goods  to  pay  for  a  license  from  a  state  government 
ill  order  to  entitle  them  to  pursue  that  branch  of 
mercantile  business,  were  declared  repugnant  to  the 
(Constitution,  were  held  to  apply  equally  to  a  similar 
interference  with  importations  from  one  state  into  an- 
other. In  that  case,  although  the  power  of  the  state 
to  regulate  its  purely  internal  commerce,  and  to  es- 
tablish its  own  police  to  control  and  promote  that 
trade  and  intercourse,  and  to  guard  the  public  health 
and  safety,  was  held  to  be  sacred  ;  yet  it  was  by  no 
means  admitted  that  these,  or  any  other  acknowl- 
edged state  powers,  could,  consistently  with  the  Fed- 
eral Constitution,  be  so  used  as  to  obstruct  or  defeat 
the  power  of  Congress  to  regulate  commerce  in  any 
of  its  branches.  But  it  was  again  explicitly  decla- 
red that,  whenever  the  powers  remaining  in  the  states 
are  so  exercised  as  to  come  into  conflict  with  those 
vested  in  Congress,  the  former  must  yield  to  what 
the  Constitution  has  ordained  to  be  the  supreme  law 
of  the  land.  Nevertheless,  if  measures  undoubted- 
ly within  the  powers  of  the  states  do  not  come  into 
actual  collision  with  those  of  the  General  Govern- 
ment, the  Federal  Courts  can  take  no  cognizance  of 
them  or  their  effects.* 

With  respect  to  commerce  with  the  Indian  tribes^ 
we  are  to  adopt  the  same  broad  interpretation  of  the 
power  of  Congress.  Under  the  Confederation,  this 
power  was  restrained  to  Indians  not  members  of  any 
of  the  states  ;  and  was  -not  to  violate  or  infringe  the 
legislative  right  of  any  state  within  its  own  limits. 
But  what  description  of  Indians  were  to  be  deemed 

*  '?.  Peters,  ?50. 


216  LECTURES    ON 

members  of  a  state,  was  a  question  of  perplexity  ami 
contention  in  the  Federal  councils,  and  was  never  set- 
tled ;  and  how  the  trade  with  the  Indians  not  mem- 
hers  of  a  state,  yet  residing  within  its  legislative  ju- 
risdiction, could  be  regulated  by  Congress  without 
intruding  upon  the  right  of  internal  legislation,  seems 
to  have  been  considered  incomprehensible  by  that 
compact.  The  power  in  question  was,  therefore, 
very  properly,  unfettered  by  the  new  Constitution 
from  limitations  which  rendered  the  former  provision 
so  obscure  and  contradictory.  As  it  now  stands,  it 
is  applicable  to  all  the  Indian  tribes ;  and  it  is  im- 
material whether  they  continue  within  the  bounda- 
ries of  a  state,  or  inhabit  a  part  of  one  of  the  territo- 
ries, or  roam  at  large  through  regions  over  which  the 
United  States  have  no  jurisdiction  ;  the  trade  with 
them  is,  in  all  its  forms,  subject  exclusively  to  the 
regulation  of  Congress.  By  the  wisdom  and  benev- 
olence of  this  provision,  the  Indians  are  no  longer 
distracted  by  the  discordant  regulations  of  different 
sovereignties,  but  are  taught  to  trust  to  one  supreme 
head,  whose  justice  they  should  ever  have  as  much 
reason  to  respect,  as  cause  to  fear  its  power. 

The  relation  of  the  aborigines  to  the  Government 
of  the  United  States  is  marked  by  peculiar  and  car- 
dinal distinctions.  The  Indian  territory  is  admitted 
to  compose  a  part  of  the  Federal  domain  ;  in  all  our 
maps,  geographical  treatises,  histories,  and  laws,  it 
is  so  considered  :  in  all  our  intercourse  with  foreign 
nations ;  in  our  commercial  regulations ;  in  any  at- 
tempt at  intercourse  between  the  Indians  and  foreign 
powers,  they  are  considered  as  within  the  jurisdic- 
tional limits  of  the  United  States,  subject  to  many  of 
those  restraints  which  are  imposed  on  our  own  citi 
zens.  They  acknowledge  themselves  in  \heir  treat- 
ies to  be  under  the  protection  of  the  Federal  Gov- 


CONSTITUTIONAL    JURISPRUDENCE.  217 

ernment ;  they  admit  that  it  shall  have  the  sole  and 
exclusive  right  of  regulating  the  trade  with  them,  and 
managing  all  their  atlairs  as  it  may  think  proper.  In 
the  jmrticular  instance  of  the  Cherokees,  they  were 
allowed  by  a  treaty,  which  preceded  the  present 
Constitution,  "  to  send  a  deputy  of  their  choice,  when- 
ever they  saw  tit,  to  Congress  ,•"  and,  under  the  un- 
settled construction  of  the  Articles  of  Confederation, 
treaties  were  made  with  some  tribes  by  the  State  of 
New-York,  by  which  they  ceded  all  their  unsettled 
lands  within  that  state,  taking  back  a  limited  grant 
to  themselves,  in  which  they  admit  their  dependance 
on  that  state. 

As  to  those  tribes  which  reside  within  the  ac- 
knowledged boundaries  of  the  Union,  we  have  seen 
that  they  are  not  deemed  foreign  nations  within  the 
meaning  of  the  Constitution,  but  are  considered  as 
domestic  dependant  nations ;  they  occupy  a  territory 
to  which  we  assert  a  title  which  must  take  effect 
when  their  right  of  occupancy  ceases  ;  and,  in  the 
mean  time,  they  are  in  a  state  of  pupilage  to  the 
Federal  Government.  They  and  their  country  are 
considered  by  foreign  nations,  as  well  as  ourselves, 
as  being  so  completely  under  the  sovereignty  and 
dominion  of  the  United  States  that  any  attempt  to 
acquire  their  lands,  or  form  a  political  connexion 
with  them,  would  be  considered  as  a  hostile  invasion 
of  our  territory.  They  are  distinguished  in  the  Con- 
stitution by  an  appropriate  name  from  foreign  na- 
tions, as  well  as  from  the  several  states  of  the  Union  ; 
and  the  objects  to  which  the  power  now  under  con- 
sideration may  be  directed,  are  divided  into  distinct 
classes  corresponding  with  that  distinction.  A  brief 
reference  to  the  origin  of  these  discriminations  will 
explain  the  principles  on  which  they  are  founded, 
and  enable  us  to  determine  with  greater  accuracy 


218  LECTURES    ON 

the  nature  and  character  of  the  subsisting  relations 
between  the  United  State  and  the  Indian  tribes. 

When  the  great  maritime  powers  of  Europe  visit- 
ed and  discovered  different  parts  of  this  continent  at 
nearly  the  same  time,  the  principle  adopted  for  de- 
ciding their  respective  rights  was,  "  that  discovery 
gave  title  to  the  government  by  whose  subjects  or  by 
whose  authority  it  was  made  against  all  other  Euro- 
pean governments,  which  title  might  be  consum- 
mated by  possession."*  The  admission  of  this  prin- 
ciple gave  to  the  nation  making  a  discovery,  as  an 
inevitable  consequence,  the  sole  right  of  acquiring 
the  soil  and  of  making  settlements  upon  it ;  and  while 
the  principle  itself  was,  as  to  them,  an  exclusive  one, 
and  shut  out  the  right  of  competition  among  those 
who  agreed  to  it,  it  could  not  annul  the  previously 
acquired  rights  of  those  who  had  never  adopted  or 
acknowledged  it.  It  regulated  the  right  given  by 
discovery  among  the  European  claimants,  but  could 
not  affect  the  rights  of  those  already  in  possession, 
either  as  original  occupants,  or  as  occupants  by  vir- 
tue of  a  discovery  beyond  the  memory  of  man.  It 
gave  an  exclusive  right  to  purchase,  but  did  not 
found  that  right  on  a  denial  of  the  right  of  the  occu- 
pant to  sell. 

The  relation  between  the  Europeans  and  the  na- 
tives was  determined  in  each  case  by  the  particular 
government  which  asserted,  and  could  maintain,  this 
pre-emptive  privilege  in  the  particular  place.  The 
United  States  succeeded  to  all  the  claims  of  Great 
liritain,  both  territorial  and  political  ;  but  no  attempt, 
so  far  as  is  known,  has  been  hitherto  made  to  enlarge 
them.  So  far  as  they  existed  merely  in  theory,  or 
were,  in  their  nature,  exclusive  only  of  the  claims  of 

*  8  Wheat.,  573. 


CONSTITUTIONAL    JURISPRUDENCE.  211J 

Other  civilized  nations,  they  still  retain  their  original 
character,  and  continue  dormant.  But  so  far  as  they 
have  been  practically  exerted,  they  exist  in  fact : 
tiicy  are  well  understood  by  both  parties  ;  have  been 
asserted  by  the  one  and  admitted  by  the  other. 
When  the  war  of  the  Revolution  commenced,  so  far 
from  advancing  a  claim  to  their  lands,  or  asserting  any 
right  of  dominion  over  their  persons,  Congress  re- 
solved "that  the  securing  and  preserving  the  friend- 
ship of  the  Indian  nations  was  a  subject  of  the  utmost 
moment."  Commissioners  were  appointed  "  to  treat 
with  the  Indians,  in  the  name  and  on  the  behalf  of 
the  United  Colonies,  in  order  to  preserve  their 
peace  and  friendship  ;"  and  the  most  strenuous  ex- 
ertions were  made  to  procure  those  articles  on  which 
Indian  friendships  were  supposed  to  depend ;  and, 
in  short,  everything  was  done  to  promote  trade  and 
avoid  hostilities  with  them. 

The  general  law  of  European  sovereigns,  respect- 
ing their  claims  in  America,  limited  the  intercourse 
of  individuals,  in  a  great  degree,  to  the  particular  po- 
tentate whose  ultimate  right  of  domain  was  acknowl- 
edged by  the  others.  The  consequence  was,  that 
their  supplies  were  derived  chiefly  from  that  nation, 
and  their  trade  confined  to  it.  Goods  indispensable 
to  their  comfort,  in  the  shape  of  presents,  were  re- 
ceived from  the  same  hand ;  and,  what  was  of  still 
more  importance,  the  strong  arm  of  government  was 
interposed  to  restrain  the  disorderly  and  licentious 
from  intrusions  into  their  country,  encroachments  on 
their  lands,  and  from  those  acts  of  violence  which 
were  often  attended  by  reciprocal  bloodshed  and 
slaughter.  The  Indians  perceived,  in  this  protec- 
Uon,  only  what  was  beneficial  to  themselves.  It  in- 
volved, practically,  no  claim  upon  their  lands  ;  no  do- 
Tiinion  over  their  persons ;  but  merely  bound  them 


220  LECTURES    ON 

to  tLe  British  crown  before  the  Revolution,  and  to 
the  United  States  afterward,  as  dependant  allies, 
claiming  the  protection  of  a  powerful  friend  and 
neighbour,  and  receiving  the  advantages  of  that  pro- 
tection, without  involving  a  surrender  of  their  na- 
tional character. 

From  the  commencement  of  the  government,  Con- 
gress has,  from  time  to  time,  passed  laws  to  regulate 
trade  and  intercourse  with  the  Indian  tribes,  which 
treat  them  as  nations^  respect  their  rights,  and 
manifest  a  firm  purpose  to  afford  that  protection  to 
them  which  treaties  stipulate.  All  these  acts,  and 
especially  the  law  now  in  force,  obviously  consider 
the  several  Indian  nations  as  distinct  political  com- 
munities, having  territorial  boundaries,  within  which 
their  authority  is  exclusive.  The  treaties  and  laws 
of  the  United  States  contemplate  the  Indian  territory 
as  completely  separated  from  that  of  the  states,  and 
provides  that  all  intercourse  with  them  shall  be  car- 
ried on  exclusively  by  the  Government  of  the  United 
States ;  while  the  powers  to  regulate  commerce,  de- 
clare war,  make  peace,  and  conclude  treaties,  com- 
prises all  that  is  required  for  regulating  our  inter- 
course with  the  Indian  tribes. 

II.  The  power  to  establish  posioj/ices  and postroads 
is  necessarily  connected  with  the  regulation  of  com- 
merce and  the  promotion  of  the  general  welfare.  A 
regular  system  of  free  and  speedy  communication  is 
not  only  of  vital  importance  to  the  mercantile  inter- 
ests of  the  country,  but,  on  a  more  enlarged  view  of 
the  subject,  must  be  admitted  to  be  of  great  general 
benefit.  In  time  of  peace,  it  facilitates  and  pro- 
motes commercial  intercourse,  tends  to  keep  the 
people  informed  of  their  political  interests,  assists 
the  measures  of  government  and  the  private  com- 
munications between  individuals.     In  war,  the  rapid 


CONSTITUTIONAL  JURISPRUDENCE.    221 

transmission  of  intelligence  by  means  of  the  public 
mails,  and  the  greater  facility  of  transferring  bodies 
of  troops,  and  transporting  military  stores,  by  means 
of  good  and  substantial  roads,  are  advantages  as  evi- 
dent as  they  are  desirable. 

If  the  establishment  of  postoffices  and  postroads 
should  in  practice  be  productive  of  no  revenue  to  the 
j)ublic,  the  expense  would  be  properly  chargeable 
on  the  general  funds  of  the  Union,  arid  the  proceeds 
of  taxation  in  the  common  forms  be  justly  applied 
to  defray  it.  If,  however,  as  has  proved  to  be  the 
case,  the  postoffice  establishment  should  continue  to 
yield  a  revenue,  which,  in  common  with  the  other 
funds  of  the  Union,  is  applicable  only  to  the  pur- 
poses of  the  General  Government,  it  is  obvious  that 
no  state  should  be  permitted  to  interfere  by  establish- 
ing a  postoffice  department  of  its  own.  The  power, 
therefore,  vested  in  Congress  is  exclusive,  so  far  as 
relates  to  the  conveyance  of  letters,  and  other  arti- 
cles transmissible  by  post.  In  regard  to  postroads, 
it  would  be  unnecessary,  and  therefore  unwarrant- 
able, in  Congress  to  make  another  road  where  a 
sufficient  one  already  exists  ;  while,  on  the  other 
hand,  no  state  has  power  to  deny  or  obstruct  the 
passage  of  the  mails,  the  marching  of  troops,  or  the 
transportation  of  the  property  of  the  United  States 
over  its  public  roads. 

The  power  of  Congress  in  relation  to  the  subject 
was  brought  into  operation  soon  after  the  adoption  of 
the  Constitution,  and  various  provisions  respecting  it 
have  since,  at  diffisrent  times,  been  enacted,  all  found- 
ed on  the  principle  of  its  being  exclusive,  so  far  as  it 
respects  the  establishment  of  postroads,  and  the  con- 
veyance of  letters  and  other  articles  by  post.  Under 
this  power,  in  conjunction  with  the  powers  of  Con- 


222  LECTURES    ON 

gress  to  raise  money  to  provide  for  the  general  wel 
tare,  and  to  pass  all  laws  necessary  and  proper  to 
carry  into  execution  the  other  powers  vested  in  the 
General  Government,  Congress  has  from  time  to 
time  set  apart  funds  for  internal  improvements,  in 
the  several  states,  by  means  of  roads  and  canals. 
This  power  has  been  exercised  for  a  long  series  of 
years  ;  and  although  often  questioned  and  denied,  is 
now  vindicated  by  precedent.  The  practice  ha& 
been  to  allow  to  the  new  states,  on  their  admissior 
into  the  Union,  a  certain  proportion  of  the  proceeds 
arising  from  the  sale  of  the  public  lands  therein,  tc 
be  laid  out  in  the  construction  of  roads  and  canals 
within  those  states,  or  leading  thereto.  In  the  yeai 
1806,  Congress  authorized  a  road  to  be  opened  from 
Nashville  in  Tennessee  to  Natchez  in  the  then  Mis- 
sissippi Territory,  without  asking  the  consent  of  the 
State  of  Tennessee  ;  and  in  1809,  the  President  was 
authorized  to  cause  the  canal  De  Carondelet,  leading 
from  the  Lake  Ponchar train  to  the  city  of  New- 
Orleans,  to  be  extended  to  the  River  Mississippi. 
The  bill  authorizing  the  former  of  these  works  was 
objected  to  by  Mr.  Jefferson,  but  was,  upon  recon- 
sideration, passed,  notwithstanding  his  objections,  by 
the  constitutional  majority  of  two  thirds  of  the  mem- 
bers present  in  both  houses  of  Congress  ;  while  the 
bill  authorizing  the  latter  was  not  objected  to,  though 
passed  under  the  same  administration,  from  the  cir- 
cumstance, it  may  be  presumed,  that  the  improve- 
ment it  contemplated  was  wholly  within  a  territory 
of  the  United  States. 

The  Cu7nherland  Road,  upon  which  so  much  has 
been  said  in  and  out  of  Congress,  and  so  much  pub- 
lic money  has  been  expended,  was  first  authorized 
by  an  act  of  Congress,  passed  also  in  1806,  and  was 
constructed  under  a  covenant  with  the  State  of  Ohio, 


CONSTITUTIONAL  JURISPRUDENCE.    223 

that  a  portion  of  the  proceeds  of  the  public  lands  ly- 
ing within  that  state  should  be  applied  to  the  open- 
ing of  roads  leading  to  it,  with  the  consent  of  the 
states  through  which  the  road  might  pass.  But  the 
expenditures  upon  it  having  exceeded  the  proceeds 
of  the  lands  appropriated  for  its  construction,  Presi- 
dent Madison,  in  1810,  objected  to  a  bill  appropria- 
ting a  fund,  of  which  a  portion  would  have  been 
available  for  continuing  it,  on  the  ground  that  the 
Constitution  did  not  extend  to  making  roads  and  ca- 
nals, and  improving  water-courses  through  the  dif- 
ferent states ;  and  that  the  assent  of  those  states 
could  not  confer  the  power.  Afterward,  in  1822, 
President  Monroe  objected  to  a  bill  appropriating 
money  for  repairing  the  Cumberland  Road,  and  estab- 
lishing gates  and  tolls  upon  it,  on  similar  grounds ; 
and  in  both  instances  the  bills  were  eventually  lost. 
On  these  and  other  similar  occasions,  there  was, 
however,  a  decided  difference  of  opinion  between 
the  majority  of  Congress  and  the  President.  Mr. 
Jefferson  in  1806,  Mr.  Madison  in  1816,  and  Mr. 
Monroe  in  1822,  denied  any  such  power  in  Con- 
gress as  these  bills  assumed  to  exist ;  or  that  it  could 
be  vested  in  that  body,  either  by  the  consent  of  the 
states  to  the  works  proposed,  or  in  any  other  mode 
than  an  amendment  of  the  Federal  Constitution.  On 
the  other  hand,  it  appears  that  Congress  claims  the 
power  to  lay  out,  construct,  and  improve  postroads 
and  military  roads,  at  all  events  with  the  assent  of 
the  states  through  which  they  pass,  as  well  as  to 
cut  canals  for  promoting  internal  commerce,  and  the 
more  safe  and  economical  transportation  of  military 
stores  in  time  of  war,  leaving,  in  all  these  cases,  the  ju- 
risdictional right  over  the  soil  in  the  respective  states. 
By  an  act  passed  in  1824,  with  the  assent  of  Mr. 
Monroe,  the  necessary  surveys,  plans,  and  estimates 


-2i  LECTl KES    ON 

were  directed  to  be  made  of  such  roads  and  canals 
as  the  President  might  deem  of  material  importance 
in  a  commercial  or  military  point  of  view,  or  neces- 
sary for  the  transportation  of  the  public  mail,  and 
appropriated  a  sum  of  money  for  the  purpose. 

The  younger  President  Adams,  in  his  inaugural 
address  in  1825,  alluded  to  this  question  ;  and  his 
opinion  seemed  to  be  in  favour  of  the  right,  as  well 
as  the  policy,  of  a  liberal  application  of  the  national 
resources  to  the  internal  improvement  of  the  country. 
He  intimated  that  speculative  scruples  on  the  subjecl 
would  probably  be  solved  by  the  practical  blessings 
resulting  from  the  application  of  the  power.  But  in 
the  year  1836,  this  subject  was  again  discussed  in 
Congress,  and  a  bill  passed  by  both  houses,  appropri- 
ating a  sum  of  money  for  a  subscription  to  the  stock  of 
a  turnpike  road,  exclusively  within  the  State  of  Ken- 
tucky, but  leading  from  Maysville,  in  the  interior  of 
that  state,  to  the  River  Ohio.  This  bill  was  returned 
by  General  Jackson,  and,  on  the  question  of  its  pas- 
sage notwithstanding  the  objections  of  the  President, 
was  finally  lost  in  the  House  of  Representatives,  in 
which  it  had  originated.  In  his  annual  message  at  the 
commencement  of  the  session,  the  President  had  ad- 
vened to  the  difficulties  which  had  before  attended  ap- 
propriations for  purposes  of  internal  improvement,  and 
expressed  a  hope  that  some  plan  might  be  devised  to 
attain  its  benefits  in  a  satisfactory  manner.  He  ob- 
served, that  the  mode  adopted  on  former  occasions 
had  been  deprecated  b3^many  as  an  infraction  of  the 
Constitution,  while  it  had  been  viewed  by  others  as 
inexpedient,  and  that  all  felt  that  it  had  been  em- 
ployed at  the  expense  of  harmony  in  the  public 
councils.  Upon  returning  the  bill  relative  to  the 
Maysville  Road,  he  referred  to  the  sentiments  he  had 
expressed  at  the  opening  of  the  session,  and  proceed* 


CONSTITUTIONAL    JURISPRUDENCE.  225 

ed  to  consider  the  constitutional  power  of  the  Gen- 
eral Government  to  construct  or  promote  works  of 
internal  improvement,  as  then  presenting  itself,  in  two 
points  of  view  :  first,  as  bearing  on  the  sovereignty 
o^  the  states  within  whose  limits  the  execution  was 
contemplated,  if  jurisdiction  of  the  territory  they  oc- 
cupy were  claimed  as  necessary  to  their  preserva- 
tion and  use  ;  the  second,  as  asserting  the  simple 
right  to  appropriate  money  from  the  national  treasury' 
in  aid  of  such  Avorks  when  undertaken  by  state  au- 
thority, surrendering  the  claim  of  jurisdiction  on  the 
part  of  the  United  States. 

In  the  first  view,  he  regarded  the  question  of  pow- 
er as  an  open  one,  which  could  be  decided  without 
the  embarrassments  attending  the  other,  arising  from 
the  practice  of  the  government.  To  the  extent  con- 
templated by  this  first  view  of  the  power.  He  asserted 
that,  although  frequently  and  strenuously  attempted, 
it  had  never  been  attained  in  a  single  instance. 
The  government,  he  insisted,  did  not  possess  it ; 
and  he  therefore  declared  that  no  bill  admitting  it 
*woul(J  receive  his  official  sanction.  But  in  the  other 
view  of  the  power,  he  considered  the  question  differ- 
ently situated,  and  remarked,  that  the  ground  taken 
at  an  early  period  of  the  governiflent  was,  that  when- 
ever money  raised  by  the  general  authority  w^as  pro- 
posed to  be  applied  to  a  particular  measure,  a  ques- 
tion arose  whether  that  measure  was  within  the  enu- 
merated authorities  vested  in  Congress.  If  it  were, 
the  money  requisite  might  be  applied  to  it.  If  it 
were  not,  no  such  application  could  be  made.  In  all 
cases,  he  averred,  in  which  the  power  to  apply  mon- 
ey had,  in  fact,  been  exercised  by  the  General  Gov- 
ernment, such  grants  had  always  been  professedly 
under  the  control  of  the  general  principle,  that  the 
works  thus  aided  should  be  of  a  general,  not  local  i 
S 


£26  L.ECTURES    ON 

of  a  national,  not  of  a  state  character.  This  distinc- 
tion he  considered  sufHciently  definite  and  impera- 
tive to  forbid  his  approbation  of  a  bill  of  the  charac- 
ter of  that  in  question,  which  he  was  not  able  to  view 
in  any  other  light  than  as  a  measure  purely  local. 
■  As  to  the  principle^  indeed,  he  was  indubitably  right, 
but  he  was  wrong  in  its  application  ;  for  most  as- 
suredly, a  road  terminating  on  the  very  river  which 
forms  the  great  line  of  communication  between  the 
Western  and  the  Atlantic  States,  must  be  considered 
of  infinitely  more  importance  in  its  general  and  na- 
tional, than  in  its  local  and  state  character.  The 
true  rule  on  the  subject,  which  seems  to  have  been 
forgotten  or  disregarded  on  this  occasion,  had  been 
laid  down  by  Chief-justice  Marshall  long  before,  and 
is  this  :  ".That  the  action  of  the  General  Government 
should  be  applied  to  all  the  external  concerns  of  the 
nation,  and  to  those  internal  concerns  which  affect 
the  states  generally,  but  not  to  those  which  are  com- 
pletely within  a  particular  state,  which  do  not  affect 
other  states,  and  with  which  it  is  not  necessary  to 
interfere  for  the  purpose  of  executing  any  of  thp  gen- 
eral powers  of  the  government y* 

III.  The  powers  to  coin  money,  to  regulate  its  value, 
and  that  of  foreign  coins,  and  to  fix  the  standard  of 
weights  and  measures,  were  possessed  by  the  old  Con- 
gress, with  the  exception  of  that  relating  to  foreign 
coins.  The  new  Constitution,  therefore,  supplied  a 
material  omission  in  the  Articles  of  Confederation, 
by  which  the  power  of  Congress  was  restrained  to 
coin  struck  by  its  own  authority,  or  that  of  the  re- 
spective states.  It  must  be  obvious  that  the  propo- 
sed uniformity  in  the  value  of  the  current  coin  might 
be  destroyed  by  subjecting  the  foreign  coin  to  the 

*  10  Wheaton,  44G. 


CONSTITUTIONAL  JURISPRUDENCE.    227 

different  regulations  of  the  several  states.  The  pow- 
er  with  respect  to  the  coin,  both  domestic  and  foreign j 
is  rendered  exclusive,  by  a  subsequent  provision  of 
the  Constitution,  prohibiting  the  individual  states 
from  its  exercise.  And  the  power  of  fixing  the 
standard  of  weights  and  measures  seems  also  prop- 
er to  be  exclusively  exercised  by  Congress  ;  but  until 
it  shall  legislate  on  the  subject,  each  state,  it  is  pre- 
sumed, retains  the  right  of  adopting  and  regulating  its 
own  standard. 

The  power  of  providing  for  the  punishment  of  coitn- 
terfeiting  the  public  securities  and  current  coin  of  the 
United  States  is  incidental  to  the  foregoing  powers 
relative  to  the  coin,  and  in  itself  seems  to  purport 
the  exclusion  of  state  power,  as  it  is  an  appropriate 
means  for  carrying  into  effect  other  delegated  pow- 
ers not  antecedently  existing  in  the  states.  It  ap- 
pears, nevertheless,  by  the  acts  of  Congress  rela- 
tive to  this  subject,  that  cognizance  of  such  cases 
may,  under  certain  circumstances,  be  concurrently 
exercised  by  the  state  courts.  The  Judiciary  Act 
of  1789,  vested,  as  we  have  seen,  in  the  Federal 
Courts,  exclusive  jurisdiction  of  all  offences  cog- 
nizable under  the  authority  of  the  United  States, 
unless  where  their  laws  should  otherwise  direct.* 
The  states,  therefore,  could  not  exercise  a  concur- 
rent jurisdiction  in  those  cases  without  coming  into 
direct  collision  with  the  laws  of  Congress.  But  by 
a  proviso  in  a  subsequent  act  concerning  counterfeit- 
ers of  the  current  coins  of  the  United  States,  Con- 
gress has  declared  that  the  jurisdiction  of  the  Federal 
Courts,  in  certain  specified  cases,  should  not  be  ex- 
clusive ;  so  that  the  concurrent  jurisdiction  of  the 
state  courts  is  restored,  so  far  as  it  can  be  exercised 
und«r  state  authority.  There  aip,  besides,  other  acta 
*  Wheaton,  26,  11 .    J.  R.,  549. 


228  LECTURES    ON 

of  Congress  which  permit  jurisdiction  over  the  oflen- 
ces  described  in  them  to  be  exercised  by  the  state 
courts  mider  the  same  condition,  and  in  all  these 
cases  where  the  jurisdiction  of  the  state  courts  is 
made  concurrent  with  that  of  the  Federal  Courts,  the 
sentences  of  the  one,  whether  of  acquittal  or  convic- 
tion, are  a  bar  to  the  prosecution  in  the  other  for  the 
same  offence. 

IV.  The  'power  to  prescribe  by  general  laws  the  man 
ner  in  which  the  public  acts,  records,  and  judicial  pro- 
ceedings of  each  state  shall  be  proved,  and  the  effect 
they  shall  have  in  other  states,  is  referred  to  this  class 
by  the  authors  of  "  The  Federalist."  It  is  an  evi- 
dent and  valuable  improvement  on  the  provision  re- 
lating to  the  same  subject  in  the  Articles  of  Con- 
federation, of  which  the  meaning  was  so  indetermi- 
nate as  to  render  it  of  little  practical  importance. 
The  power,  as  it  now  stands,  has  been  found,  as 
was  intended,  to  be  a  convenient  instrument  of  jus- 
tice, and  particularly  beneficial  on  the  borders  of  con- 
tiguous states,  where  persons  and  effects  liable  to 
judicial  process  may  be  suddenly  and  secretly  with- 
drawn to  a  foreign  jurisdiction. 

The  clause  in  the  Constitution  which  vests  this 
power  in  Congress,  previously  declares  that  "  full 
faith  and  credit  shall  be  given  in  each  state  to  the 
public  acts,  records,  and  judicial  proceedings  of  every 
other  state."  And  the  act  passed  by  Congress  in 
execution  of  this  power,  prescribes  the  manner  of 
authenticating  such  acts,  records,  and  proceedings, 
and  declares  that,  when  so  authenticated,  they  "  shall 
have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law 
or  usage  in  the  courts  of  the  state  from  whence  they 
are  takes:."*  ^  - 

*  Laws  U.  S.,  1790,  ch.  38. 


t      ^>     of 

CONSTITUTIONAL    JUU!(sritUD1fijjJ>E.     , 

Under  the  clause  of  the  Constitution, -and  this  legis-  ^v 
lative  provision  for  giving  it  effect,  if  a  judgment  have 
the  efiect  of  record  evidence,  or,  in  otiier  vvorjs,*  Ja^^  N  > 
conclusive  evidence,  i.  e.,  admitting  neither  of  ;;^im-'*^\y 
peachment  nor  contradiction  in  the  courts  oflhe  state  " 
in  w^hich  it  was  rendered,  it  has  the  same  effect  in 
the  courts  of  all  the  other  states.*"  And  the  Supreme 
Court  of  the  United  States,  in  so  ruling,  declared  that 
the  common  law  gives  to  a  judgment  of  the  courts 
of  one  state  the  effect  of  prima  facie  evidence,  i.  c, 
evidence  open  to  impeachment,  explanation,  or  con- 
tradiction, in  the  courts  of  every  other  state ;  but 
that  the  Constitution  contemplates  a  power  in  Con- 
gress to  give  a  conclusive  effect  to  such  judgments  ; 
which  power  it  has  exercised  by  rendering  a  judg- 
ment conclusive  when  the  courts  of  the  particular 
8tate  would  pronounce  the  same  decision.!  And  in 
a  recent  case,  it  was  declared  that  the  clause  in  ques- 
tion cannot,  by  any  just  construction  of  its  words,  be 
held  to  embrace  an  alleged  error  in  a  decree  of  a 
state  court,  asserted  to  be  in  coUsion  with  a  prior 
decision  of  the  same  case.J 

V.  The  power  '*  to  establish  a  uniform  system  ofnat- 
uralizalion"  which  was  the  next  we  proposed  to  ex- 
amine, is  necessarily  exclusive  ;  especially  as  it  is 
provided,  in  a  subsequent  part  of  the  Constitution,  that 
*'  the  citizens  of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several 
states." 

The  dissimilarity  of  the  rules  of  naturalization 
which  existed  in  the  different  states,  had  given  rise, 
under  the  Confederation,  to  some  intricate  and  deli- 
cate questions,  from  the  ambiguous  terms  of  the  ar- 
ticle in  relation  to  the  subject.     To  put  an  end  to  all 

♦  7  Cranch,  481.  3  Wheaton.  234.        %  14  Petors,  48i. 


230  J.fiCTURES    ON 

such  questions  in  future,  the  new  Constitution  au- 
thorized the  General  Government  to  establish  a  uni- 
form  rule  throughout  the  United  States.  There  is 
indeed,  no  express  prohibition  of  state  legislation  ii? 
regard  to  it ;  but  if  each  state  retained  the  power  ol 
naturalization,  while  the  citizens  of  each  state  wert 
entitled  to  the  privileges  of  citizens  in  the  several 
states,  any  one  state  might  impose  on  all  the  oth 
ers  such  persons  as  citizens  whom  it  might  think 
proper  to  admit.  In  one  state,  a  short  residence,  with 
a  slight  declaration  of  allegiance,  as  was  the  case  un- 
der the  first  Constitution  of  Pennsylvania,  might  con- 
fer the  right  of  citizenship :  in  another,  higher  qual- 
ifications, as  was,  in  fact,  generally  the  case,  might  be 
required ;  and  an  alieriy  desirous  of  eluding  the  lat- 
ter, might,  by  complying  with  the  former,  become  a 
citizen  of  a  state  in  opposition  to  its  own  regulations  ; 
and  thus  the  laws  of  one  state  might  become  para- 
mount in  a  matter  of  vital  consequence  to  another. 
Hence  the  importance  of  rendering  this  power  ex- 
clusive. That  it  is,  indeed,  so  vested  in  Congress, 
was  considered  incontrovertible  by  the  Supreme 
Court  of  the  United  States,  in  a  case  in  which  the 
decision  depended  on  that  point  ;*  and  it  was  decla- 
red, subsequently,  to  have  been  so  held  on  the  ground 
of  a  direct  repugnancy  or  incompatibility  in  the  exer- 
cise of  a  similar  power  by  the  states-t 

No  definition  of  the  character  of  a  citizen  is  con- 
tained in  the  Constitution  of  the  United  States.  The 
term  is  used  with  a  plain  indication  that  its  meaning 
must  have  been  generally  understood,  by  reference 
to  that  system  of  national  jurisprudence  which,  as  I 
had  occasion  to  observe  in  a  former  lecture,  is  justly 
regarded  as  the  means  or  instrument  of  exercising  the 

*  2  Wheaton,  2G9.  t  5  Wheaton,  41i. 


CONSTITUTIONAL   JURISPRUDENCE.  231 

jurisdiction  conferred  by  the  Constitution.  At  the 
time  of  its  adoption,  the  citizens  of  the  several  states 
collectively  constituted  the  citizens  of  the  United 
States.  They  were  either  native  citizens,  or  those 
born  within  the  states,  or  riaturalized  citizens,  or  per- 
sons born  elsewhere,  but  who,  upon  assuming  the  al- 
legiance, became  entitled  to  the  privileges  of  native 
citizens.  All  who  were  resident  citizens  at  the  time 
of  the  Declaration  of  Independence,  and  deliberately 
yielded  to  that  measure  an  express  or  implied  assent, 
became  parties  to  it,  and  are  considered  as  natives, 
their  social  tie  being  coeval  with  the  nation  itself. 

It  has  been  admitted,  both  in  the  English  courts 
and  our  own,*  that  all  persons  born  within  the  colo- 
nies, while  subject  to  the  crown  of  Great  Britain, 
were  natural-born  British  subjects ;  but  it  was  held 
as  a  necessary  consequence  that  this  character  was 
changed  by  the  separation  of  the  colonies  from  the 
parent  state,  and  the  acknowledgment  of  their  inde- 
pendence. The  rule,  however,  as  to  the  point  of 
time  at  which  Americans  born  before  the  separation 
ceased  to  be  British  subjects,  differs  in  this  country 
and  in  England.  The  rule  established  by  the  Eng- 
lish courts  adopts  the  date  of  the  treaty  of  peace  in 
1783,  while  ours  have  fixed  upon  that  of  the  Decla- 
ration of  Independence.  But  in  the  application  of 
the  rule  to  different  cases,  some  difference  of  opinion 
may  arise.  The  settled  doctrine  in  this  country  is, 
that  a  person  born  here,  who  left  the  colonies  before 
the  Declaration  Independence,  and  never  returned, 
thereby  became  an  alien  ;  and,  as  a  general  rule,  the 
character  in  which  Americans  born  before  the  Revo- 
lution are  to  be  regarded,  depends  on  the  situation  of 
the  party,  and  the  election  made  by  him,  at  the  Dec* 

*  3  Peters,  128 


232  LECTURES    ON 

laration  of  Independence,  according  to  our  rule,  and 
at  the  treaty  of  peace,  according  to  the  English.  Dif- 
ficulties, however,  have  occurred  where  rights  liave 
accrued  between  these  dates.  But  if  the  right  of 
election  be  admitted  at  all,  it  must  be  determined  by 
what  took  place  during  the  Revolution,  and  between 
the  Declaration  of  Independence  and  the  treaty  of 
peace. 

It  is  a  doctrine  of  the  English  law,  that  natural- 
born  subjects  owe  an  allegiance  which  is  intrinsic 
and  perpetual,  and  which  cannot  be  diverted  by  any 
act  of  their  own.  But  it  has  been  a  question  fre- 
quently and  gravely  debated  whether  this  doctrine  ol 
perpetual  allegiance  applies  in  its  full  extent  to  the 
United  States.  The  best  writers  on  public  law* 
have  treated  this  subject  rather  loosely,  but  seem 
generally  to  favour  the  right  of  the  citizen  to  emi- 
grate and  abandon  his  native  country,  unless  there 
be  some  positive  restraint  by  law,  or  he  is,  at  the 
time,  in  possession  of  some  public  trust,  or  his  coun- 
try be  in  distress,  or  at  war,  and  in  need  of  his  ser- 
vices. The  principle  declared  in  some  of  our  state 
constitutions,  that  the  citizens  have  a  natural  and  in- 
herent right  to  emigrate,  goes  far  towards  a  renun- 
ciation of  the  doctrine  of  the  English  law,  as  repug- 
nant to  the  natural  liberty  of  mankind — provided  cm- 
igration  is  intended  in  those  cas'es  to  be  used  as  sy- 
nonymous with  expatriation.  But  the  allegiance  of 
our  citizens  is  due,  not  merely  nor  principally  to  the 
local  government  of  the  state  in  which  they  reside, 
but  primarily  and  chiefly  to  the  United  States,  which 
government  alone  aflfords  them  national  protection, 
and  imparts  to  them  their  national  character ;  and 
the  doctrine  of  final  and  absolute  expatriation,  though 

♦  Grotius,  b.  ii„  ch.  v.  Puffend.,  b.  viii.,  ch.  xi.  Vattel,  b.  i. 
cb.  xix. 


CONSTITUTIONAL   JURISPRUDENCE.         2?i3 

frequently  discussed  in  our  courts,  remains  yet  to  be 
settled,  and  requires  to  be  defined  with  precision,  and 
subjected  to  certain  established  limitations,  before  it 
can  be  admitted  into  our  jurisprudence,  or  laid  down 
broadly  as  a  wise  and  salutary  rule  of  national  policy. 

It  is  not,  however,  applied  by  the  English  courts 
to  the  American  ante-nati ;  as  is  manifest  from  a 
case  decided  some  years  since  in  the  Court  of  the 
King's  Bench,*  iri  which  the  treaty  of  peace  was 
considered  as  a  release  from  their  allegiance  of  all 
British  subjects  who  remained  in  this  country.  The 
British  doctrine,  therefore,  is  that  the  American  au" 
te-nati,  by  remaining  in  this  country  after  the  peace, 
lost  their  character  as  British  subjects  ;  and  our  doc- 
trine is,  that  by  withdrawing  from  this  country  they 
lost,  or,  perhaps,  more  properly  speaking,  they  never 
acquired  the  character  of  American  citizens. 

AH  persons  born  out  of  the  jurisdiction  of  the  Uni- 
ted States  are  termed  aliens.  There  are,  however, 
some  exceptions  to  this  rule  derived  from  the  ancient 
English  law  ;  as  in  the  case  of  the  children  of  pub- 
lic ministers  born  abroad,  for  their  parents  owed  not 
even  a  local  allegiance  to  the  foreign  power.  So, 
also,  in  every  case,  the  children  born  abroad  of  Eng- 
lish parents  were  considered  as  natives  of  England 
if  the  father  went  and*  continued  abroad  in  the  char- 
acter of  an  Englishman.  By  the  existing  law  of  the 
United  States  relative  to  naturalization,  it  is  declared 
that  the  children  of  persons  who  were  or  had  been 
citizens  of  the  United  States  at  the  time  of  passing 
the  act,  should,  though  born  out  of  the  United  States, 
be  considered  as  citizens  ;  but  that  the  right  of  citi- 
zenship should  not  descend  to  persons  whose  fathers 
had  never  resided  within  the  United  States.  This  pro- 
vision not  being  prospective  in  its  operation,  the  ben- 
"^  2  C^FQ.  anr"  ^rp«w,,  779. 


234  LECTURES    ON 

efit  of  it  narrows  rapidly  by  lapse  of  time,  and  the  pe- 
riod will  soon  arrive  when  there  will  be  no  statutory 
regulation  in  favour  of  children  born  abroad  of  Amer- 
ican parents  ;  and,  imless  one  be  made  in  season, 
they  will  be  driven  to  resort  for  aid  to  the  dormant 
and  doubtful  principles  of  the  common  law. 

Aliens  coming  to  this  country  with  the  intention 
of  making  it  their  permanent  residence,  have  many 
inducements  to  become  citizens.  •  They  are  incapa- 
ble, until  naturalized,  of  holding  a  stable  interest  in 
land  in  many  of  the  states  ;  or  of  holding  any  civil 
office ;  or  of  voting  at  elections  ;  or  of  taking  any  ac- 
tive share  in  the  administration  of  the  Federal  or 
State  Governments.  A  convenient  and  easy  mode 
(perhaps  too  easy  and  convenient)  has  been  provi- 
ded by  Congress  for  removing  the  disabilities  of 
alienage  ;  and  the  terms  on  which  every  alien,  be- 
ing a  free  white  person,  can  obtain  the  qualifications 
and  privileges  of  a  natural-born  citizen,  are  prescri- 
bed in  the  several  acts  of  Congress  on  the  subject.* 
The  right  of  aliens  to  the  privileges  of  naturaliza- 
tion are,  by  these  laws,  submitted  to  the  decision 
of  any  court  of  record  within  the  United  States ; 
and  a  person  duly  naturalized  (which  he  may  be 
after  a  residence  of  five  years)  becomes  entitled 
to  all  the  privileges  and  immunities  of  a  natu- 
ral-born citizen,  except  that  a  residence  of  seven 
years  is  requisite  to  enable  him  to  hold  a  seat  in  the 
House  of  Representatives,  of  nine  years  to  hold  a 
seat  in  the  Senate,  and  that  he  remains  always  inel- 
igible to  the  offices  of  President  of  the  United  States 
and  governor  in  several  of  the  states.  The  policy 
of  these  laws  have  been  strongly  doubted  by  some  ol 
our  wisest  and  best  statesmen  and  native  politicians  ; 

*  Laws  of  U.  S.,  1802,  ch.  xviii. ;  1813,  ch.  clxxxiv. ;  1816,  ch. 
2^xxii. 


CCNSTITUTIONAL    JURISPRUDENCE.  235 

and  every  year's  experience  tends  amply  to  confirm 
chose  doubts.  For  a  short  period,  during  the  admin- 
istration of  the  elder  Adams,  the  term  of  residence 
prescribed  by  law  to  entitle  an  alien  to  naturalization 
was  fourteen  years.  But  the  passing  of  that  law 
was  one  of  the  most  powerful  causes  of  the  expul- 
sion of  Mr.  Adams  and  the  Federal  party  from  the 
administration  of  the  General  Government ;  and 
however  some  of  his  successors  may  have  regretted 
its  repeal,  they  have  been  too  well  convinced  of  the 
difficulty  of  recalling  a  popular  concession  to  attempt 
its  re-enactment.  There  are  two  improvements, 
however,  that  seem  equally  practicable  and  desirable, 
and  would  go  far  to  remedy  the  existing  evils  of  the 
system :  the  one  is,  to  render,  by  an  amendment  of 
the  Constitution,  the  naturalized  citizen  incapable  of 
holding  any  office  of  trust  or  profit ;  the  second,  to 
vest,  by  an  amendment  of  the  statutes,  the  jurisdic- 
tion in  cases  of  naturalization  exclusively  in  the 
Federal  Courts. 

VI.  The  power  of  Congress  "  to  establish  uniform 
laws  on  the  subject  of  bankruptcies^^  is  intimately  con- 
nected with  the  regulation  of  commerce  ;  and  there 
are  peculiar  reasons  why  the  National  Governmerrt 
should  be  intrusted  with  this  power,  arising  from 
the  importance  of  preserving  uniformity  and  equality 
of  rights  among  the  citizens  of  all  the  states,  and  of 
maintaining  commerce,  credit,  and  intercourse  with 
foreign  nations.  It  has  been  found  necessary,  in 
governments  which  authorize  personal  arrests  and 
mprisonment  for  debt,  to  interpose  and  provide  reliel 
Tor  the  debtor  in  cases  of  inevitable  misfortune  ;  and 
this  has  been  particularly  the  case  in  regard  to  in- 
solvent merchants,  who  are  frequently  tempted,  if 
not  obliged,  by  the  habits,  pursuits,  and  enterprising 
nature  of  trade,  to  give  and  receive  credit,  and  en- 


236  LECTURES    ON 

counter  extraordinary  hazards  ;  and,  besides  relieving 
the  debtor,  bankrupt  and  insolvent  laws  are  intended 
to  secure  the  application  of  his  effects  to  the  pay- 
ment of  his  debts.  Bonkrwptcy.  in  the  English 
law,  has  by  long  and  settled  usage  received  an  ap- 
propriate meaning  ;  and  has  been  considered  appli- 
cable to  unfortunate  or  fraudulent  traders,  who  do 
certain  acts  affording  evidence. of  their  inability  to 
pay  their  debts,  or  of  their  intention  to  avoid  it.  But 
the  line  of  partition  between  bankrupt  and  insolvent 
laws  is  not  so  distinctly  marked  as  to  enable  laymen 
or  lawmen  to  determine  with  positive  precision  what 
belongs  exclusively  to  the  one  or  to  the  other  ;  and 
it  is  the  more  difficult  to  discriminate  between  them, 
because  bankrupt  laws  may,  and  frequently  do,  con- 
tain regulations  which  are  generally  found  in  insolvent 
laws ;  and  in  insolvent  laws,  some  that  are  common 
in  a  bankrupt  law.  And  although  bankrupt  laws  are 
generally  and  properly  confined  to  the  trading  class- 
es, who  are  most  exposed  to  pecuniary  vicissitudes, 
yet,  as  misfortune  and  poverty  may  also  overtake 
those  who  pursue  otner  occupations,  the  latter  ought 
not  to  be  excluded  from  the  humane  protection  of 
the  state  legislatures.  Nor,  indeed,  should  the 
former,  or  their  creditors,  be  left  without  the  means 
of  relief,  in  case  Congress  does  not  in  its  discretion 
think  proper  to  exercise  the  power  vested  in  them 
in  relation  to  bankruptcy.  This  power  of  Congress 
has,  accordingly,  been  held  not  to  exclude  the  right 
of  the  states  to  legislate  on  the  same  subject,  except 
where  the  power  has  been  already  executed  by  a 
subsisting  law  of  Congress  with  which  the  state  law 
would  conflict.* 

Whenever,  indeed,  the  terms  in  which  a  power  ia 
granted  by  the  Constitution,  or  the  nature  and  cbar- 
*  4  Wheat.,  122.     12  Wheat.,  2ia 


CONSTITUTIONAL  JURISPRUDENCE.    237 

acter  of  the  power  itself,  require  tliat  it  should  be  ex- 
ercised exclusively  by  Congress,  the  subject,  as  we 
have  already  seen,  is  as  completely  taken  away  from 
the  state  as  if  its  Legislature  had  been  expressly  for- 
bidden to  act  on  it.  But  the  power  now  in  question 
is  held  not  to  be  of  this  description  ;  and  a  state  has 
a  right,  consistently  with  the  provision  in  the  Federal 
Constitution,  to  pass  bankrupt  and  insolvent  laws, 
provided  they  do  not  impair  the  obligation  of  contracts, 
and  there  be  no  act  of  Congress  in  force  with  which 
the  state  laws  would  come  into  collision.  Nor  is  the 
right  of  a  state  to  pass  bankrupt  laws  extinguished 
by  the  enactment  of  a  uniform  law  by  the  Legislature 
of  the  Union  ;  but  is  only  suspended  while  the  law  of 
Congress  exists,  and  so  far  only  as  the  state  law 
might  be  found  to  conflict  with  it.  While  the  act  of 
Congress  remains  in  force,  the  power  of  the  state 
continues  over  such  cases  which  the  act  of  Congress 
does  not  embrace.  Hence  the  power  of  passing  in- 
solvent laws,  not  coming  within  the  technical  de- 
scription of  bankrupt  laws,  is  always  in  force  ;  and 
from  the  expiration  or  repeal  of  a  bankrupt  law  of 
Congress,  the  ability  of  the  state  to  exercise  its  con- 
current power  in  regard  to  bankruptcy,  qualilied  as  I 
have  mentioned,  immediately  revives. 

The  Legislature  of  the  Union,  then,  possesses  the 
power  of  enacting  bankrupt  laws,  and  those  of  the 
states  of  passing  insolvent  laws  ;*  and  a  state  has, 
moreover,  authority  to  pass  a  bankrupt  law  when  no 
act  of  Congress  exists  on  the  subject  with  which 
the  state  law  might  conflict ;  but  no  state  bankrupt  or 
insolvent  law  is  permitted  to  impair  the  obligation  of 

*  Mr.  Justice  Story,  however,  observes,  in  reference  to  the  case 
of  Sturges  vs.  Crowninshield,  that  "no  distinction  was  ever  prac- 
:;ically,  or  even  theoretically,  attempted  to  be  made  between  bank 
-jptfie:  and  insolvencies." — Comm.,  HOG. 


238  LECTURES   ON 

contracts.  There  is  this  farther  limitation  upon  the 
powei  of  the  several  states  to  pass  either  bankrupt 
or  insolvent  laws — that  they  cannot,  in  the  exercise 
of  that  power,  act  upon  the  rights  of  citizens  of  other 
states  ;  and  hence  the  greater  necessity  of  investing 
Congress  with  power  to  establish  a  uniform  system  of 
bankruptcy  throughput  the  Union  ;  as  a  discharge  un- 
der a  state  law  would  be  no  bar  to  a  suit  by  a  citizen  of 
another  state  in  the  courts  either  of  the  United  States, 
or  any  other  state  than  that  in  which  the  discharge 
was  obtained.  It  only  operates  upon  contracts  made 
within  the  state  :  between  its  own  citizens  or  suitors 
subject  to  state  powers.*  And  it  is  a  principle  of 
universal  law,  that  the  municipal  law  of  the  state  is 
the  law  of  the  contract  made  and  to  be  executed 
within  the  state,  and  that  it  travels  with  it,  whereso- 
ever the  parties  to  it  may  be  found ;  unless  it  refei 
to  the  law  of  some  other  country,  or  be  immoral,  or 
contrary  to  the  policy  of  the  country  where  it  is 
sought  to  be  enforced  ;  and,  consequently,  the  dis- 
charge of  the  contract,  or  of  the  party  where  the  con- 
tract was  made,  is  a  discharge  everywhere.  But  a  dis- 
charge under  a  state  law  is  no  bar  to  a  suit  on  a  con^ 
tiact  not  existing  when  the  law  loas  passed ;  as  the 
exercise  of  the  power  remaining  in  the  states  to  pass 
bankrupt  and  insolvent  laws  does  not,  in  the  sense  of 
the  Federal  Constitution,  impair  the  obligation  of 
posterior  contracts,  but  only  of  those  made  antecedent' 
ly  to  the  law. 

The  first  bankrupt  law  passed  by  Congress  pursued 
strictly  the  power  vested  in  that  body,  and  was  in  its 
terms  confined  to  merchants  and  traders.  It  was  but 
a  few  years  in  operation,  and  was  suffered  to  expire 
by  its  own  limitation.     Nor  was  any  attempt  made 

*  12  Wheaton,  213. 


CONSTITUTIONAL  JURISPRUDENCE.     239 

for  a  long  time  to  revive  the  system ;  and  whenever 
afterward,  the  effort  was  made,  it  was  unsuccessful, 
until  the  last  session  of  Congress.  The  obstacles  to 
its  revival  were  such  as  to  repress  every  hope  of  re- 
newing the  experiment  until  a  material  change  was 
wrought  in  public  opinion.  These  objections  were, 
in  the  first  place,  the  difficulty  of  defining,  to  the  sat- 
isfaction of  all  parts  of  the  Union,  the  precise  class 
of  debtors  who  could,  consistently  with  the  constitu- 
tional jurisdiction  of  Congress,  be  made  subjects  of 
a  bankrupt  law.  It  seemed,  on  all  these  occasions, 
to  be  taken  for  granted  that  the  power  of  Congress 
extended  no  farther  than  to  bankruptcy  in  its  techni- 
cal and  limited  sense,  by  which  its  operation  is  re- 
stricted to  merchants  and  traders.  But  the  more  gen- 
eral, and,  perhaps,  more  substantial  objection,  was  the 
expense,  delay,  and  litigation  which  had  been  found 
to  attend  its  proceedings  ;  and  the  still  more  griev- 
ous abuses  and  frauds  to  which  the  system  leads, 
notwithstanding  the  vigilance  and  integrity  of  those 
to  whom  its  administration  was  committed.  It  was 
observed  by  the  chancellor  and  the  judges  of  the 
Supreme  Court  of  New-York,  in  a  report  made  to 
the  Legislature  of  that  state,  by  whom  their  opinions 
had  been  requested  as  to  the  expediency  of  the  in- 
solvent laws,  that,  "judging  from  their  former  expe- 
rience, and  from  observation  in  the  course  of  their 
judicial  duties,  they  were  of  opinion  that  it  was  a 
source  of  fraud  and  perjury.  They  were  apprehen- 
sive,'' they  stated,  "  that  the  evil  was  incurable,  and 
arose  principally  from  the  infirmity  inherent  in  such 
a  system."  With  respect  to  the  infirmilies  of  the 
English  system  of  bankruptcy,  which  are  the  growth 
of  more  than  two  centuries,  during  which  it  has  been 
(constantly  under  the  view  of  Parliament,  and  matu- 
rincr  by  the  wisdom  of  a  succession  of  distinguished 


240  LECTURES    ON 

judges,  the  late  Lord  Eldon,  one  of  the  ablest  min 
isters  and  soundest  lawyers  of  modern  times,  aftei 
his  appointment  as  chancellor,  took  the  earliest  op- 
portunity to  express  his  indignation  at  the  frauds 
which  had  been  committed  under  cover  of  that  sys- 
tem, and  emphatically  remarked,  that  "  the  abuse 
o(  the  bankrupt  law  was  a  disgrace  to  the  country." 
In  the  face  of  such  testimony,  thus  derived  from 
men  of  the  greatest  learning  and  experience  in  the 
practice  and  administration  of  the  law  both  in  Eng* 
land  and  in  this  country,  the  friends  and  advocates  of 
the  bankrupt  system  have  persevered,  and  by  strain- 
ing the  constitutional  point,  and  inducing  Congress 
to  adopt  a  latitude  of  construction  which  had  not 
been  thought  of  on  any  of  the  former  occasions, 
eventually  procured  the  passage  of  an  act  which, 
under  the  title  of  a  Bankrupt  Law,  embraces  provis- 
ions peculiar  to  insolvent  laws,  rendering  it  the  vol- 
untary refuge  of  the  debtor,  and  extending  its  bene- 
fits to  every  description  of  persons  owing  debts,  with 
the  exception  of  those  created  in  consequence  of  a 
defalcation  as  a  public  officer,  or  as  an  executor,  ad- 
ministrator, guardian,  or  trustee,  or  while  acting  in 
any  other  fiduciary  capacity.  It  moreover  subjected 
merchants,  traders,  bankers,  factors,  brokers,  and  un- 
derwriters to  be  declared  bankrupt  on  the  petition  of 
their  creditors,  and  proof  of  their  having  committed 
an  act  of  bankruptcy.  And  this  measure  prevailed 
more  from  the  atrophy  under  which  commercial  en- 
terprise and  credit  had  laboured  for  the  few  prece- 
ding years,  than  from  real  conviction  of  its  consist- 
ency either  with  the  provisions  of  the  Constitution, 
or  the  rules  of  sound  policy.  It  was,  indeed,  con- 
sidered as  a  temporary  expedient,  to  be  abandoned 
when  it  had  performed  its  ofllce,  and  the  causes 
which    produced  it  had  ceased   to  operate  :   and  it 


(JON'STl'I  UTIONAL     JURISPRUDENCE.  241 

hasj  accordingly,  been  since  repealed.  None  of  the 
states  have  enacted  bankrupt  laws,  technically  so 
called.  Most  of  them,  however,  have  permanent  in- 
solvent laws  ;  but,  inasmuch  as  they  cannot  discharge 
the  debtor  from  the  obligation  of  his  contract,  and 
imprisonment  for  debt  has  been  abolished  in  many 
states,  the  operation  of  those  laws  is,  in  effect,  confi- 
ned to  the  person  of  the  debtor  in  the  states  where 
(hat  relic  of  a  barbarous  age  is  still  preserved, 

"  And  where  he  cannot  be  discharged, 
Till  nature  tire  with  its  own  weight,  and  then 
Is  he  but  more  undone  to  be  at  liberty." 


LECTURE  X 

ON  THE  POWERS  VESTED  IN  THE  FEDERAL  GOVERN- 
MENT RELATIVE  TO  CERTAIN  MISCELLANEOUS  OB- 
JECTS   OF    GENERAL    UTILITY. 

The  first  to  be  enumerated  in  this  class  is  the 
power  "  to  promote  the  progress  of  science  and  the 
useful  arts,  by  securing  for  limited  times,  to  authors 
and  inventors,  the  exclusive  right  to  their  writings 
and  discoveries y 

The  claims  of  authors  and  inventors  are  so 
congenial  to  our  notions  of  natural  justice,  and 
accord  so  harmoniously  with  the  ultimate  objects 
jf  society  in  establishing  the  rights  of  property, 
'.hat,  at  first  sight,  it  seems  strange  that  the  ex 
istence  of  this  right  should  ever  have  been  made 
ii  question.  It  was  so,  however,  in  the  great  case 
i)f  literary  property  which  arose  in  England.  It 
w;)s,  nevertheless,  finally  settled,  by  a  solemn 
j  ilnment  of  the  House  of  Lords,  that,  although 
buch  right  had  existed  at  common  law,  yet  that 
T 


242  LECTURES    ON 

the  statute  passed  in  the  reign  of  Queen  Anne  foi 
securing  copy-rights  had  limited  the  right,  which 
had  hefore  been  perpetual,  to  a  term  of  years 
But  those  judges,  whose  opinions  were  overruled 
by  this  reversal  of  an  almost  unanimous  opinion 
of  the  Court  of  King's  Bench,*  and  who,  reason- 

*  This  celebrated  case  is  reported  in  4  Burrow,  2303,  under  the 
title  of  Miller  vs.  Taylor,  which  was  the  cause  decided  in  the 
Court  of  King's  Bench,  all  the  judges,  excepting  Mr.  Justice  Yates, 
agreeing  that  an  author  had  the  sole  right  of  printing  and  publish- 
ing his  work  in  perpetuity  by  the  common  law,  and  that  such 
right  is  in  no  wise  impeached  by  the  statute  of  Anne.  A  writ  of 
error  was  afterward  brought,  but  the  plaintiff  in  error"  suffered 
himself  to  be  non-prossed  ;  and  the  Court  of  Chancery  granted  an 
injunction  in  1770.  In  1774,  the  case  of  Donaldson  vs.  Becket 
brought  the  question  on  appeal  before  the  House  of  Lords.  The 
lords  commissioners  of  the  great  seal  had  granted  an  injunction 
against  violating  a  copy-right  at  common  law  ;  and  when  the  appeal 
from  that  decree  was  brought  up  to  the  Lords,  the  judges  were  di- 
rected to  deliver  their  opinions  upon  the  following  questions,  viz. : 

1.  Whether,  at  common  law,  an  author  had  the  sole  right  oi first 
printing  and  publishing  his  book  for  sale  ;  and  might  bring  an  ac- 
tion against  any  person  who  printed,  published,  and  sold  the  same 
without  his  consent  ? 

2.  If  the  author  had  such  right  originally,  did  the  law  take  it 
away  upon  his  printing  and  publishing  his  work  for  sale ;  and 
might  any  person  afterward  reprint  and  sell  it  for  his  own  benefit 
against  the  will  of  the  author? 

3.  If  such  action  would  have  laid  at  common  law,  is  it  taken 
away  by  the  statute  of  Anne  ?  And  is  an  author  by  that  statute 
precluded  from  every  remedy,  except  on  the  foundation  of  said 
statute,  and  on  the  terms  and  conditions  prescribed  thereby? 

4.  Whether  the.  author  of  any  literary  composition,  and  his  as- 
signs, had  the  sole  right  of  printing  and  publishing  the  same  in 
perpetuity  by  tlie  common  law  ? 

5.  Whether  this  right  is  in  any  way  impeached,  restrained,  or 
taken  away  by  the  statute  ? 

Qp  )n  the  hrst  question,  the  judges  were  eight  to  three  in  the 
afiirmative ;  on  the  second,  seven  to  four;  on  the  third,  six  to  five 
in  the  negative  :  so  that  the  general  result  was,  "  that  an  au- 
thor had  the  sole  right  in  perpetuity  at  common  law,  and  that 
such  right  was  in  no  wise  impeached  by  the  statute."  It  was 
known  that  Lord  Mansfikld  adhered  to  the  opinion  delivered 
by  him  in  the  Court  of  King's  Bench ;  and  therefore  concurred 
with  the  eight  upon  the  first  question  ;  and  with  the  seven  U])on 
the  second ;  and  with  the  five  on  the  third.  But,  it  being  unusual 
tor  a  peer  to  support  his  own  judgment  on  an  appeal,  he  gave  no 


CONSTITUTIONAL   JURISPRUDENCE.  243 

tng  upon  different  principles,  arrived  at  a  differ- 
ent result,  were  perplexed  by  the  indefinite  na 
ture  of  the  right,  and  embarrassed  by  the  conse- 
quences of  admitting  it.  On  the  one  hand,  to 
deprive  men  of  genius  of  the  right  to  the  profits 
of  invention  was  discouraging  literature  and 
the  useful  arts,  and  throwing  impediments  in  the 
wiy  of  science  and  learning.  On  the  other  hand, 
an  unlimited  right  to  the  exclusive  enjoyment  of 
the  fruits  of  genius  and  discovery,  though  for  a 
time  it  might  stimulate  both,  yet,  in  its  conse- 
quences, would  levy  a  perpetual  tax  on  posteri- 
ty, and  check  the  progress  of  invention  itself 

The  full  result  of  admitting  an  exclusive  and 
perpetual  right  of  property  in  the  produce  of 
intellectual  labour  was  not,  and  could  not  be  fully 
known  or  estimated  ;  but  that  it  would  operate 
as  a  bar  to  the  advancement  of  human  knowl- 
edge, and  powerfully  retard  the  progress  of  so- 
ciety, was  clear  to  demonstration.  Yet,  to  deny 
to  inventors  the  fair  profits  derivable  from  their 
talents  and  exertions,  seemed  to  be  at  variance 
with  every  idea  of  natural  justice  and  every  dic- 
tate of  liberal  policy.  It  was,  in  effect,  to  deny 
to  genius  its  appropriate  reward,  and  to  withhold 
from  the  powers  of  intellect  one  of  the  strongest 
stimulants  to  their  exertion.  From  a  balanced 
consideration,  therefore,  of  both  sides  of  this 
important  question,  the  statute  of  Anne,  limiting 
the  rights  of  authors  and  inventors,  in  their  wri- 
tings and  discoveries,  to  a  term  of  years,  was 
regarded  as  a  compromise,  by  which  the  claims 

opinion;  and  the  Lord  Chanckllor  (Apsley)  seconding  Lord 
Camden's,  his  predecessor's,  motion  "to  reverse,"  the  decree  of 
the  Court  of  Chancery  was  reversrd.  So  that  the  decision  of  the 
Peers  was,  in  ellect,  that  the  right  was  perpetual  at  common  law, 
\i)ut  reversed  by  the  statute  to  a  term  of  years. 


244  LECTURES    ON 

of  the  inventor  were  acknowledged,  his  right* 
defined  and  protected,  and  his  reward  secured ; 
while  a  public  interest  was  effectually  created 
and  a  barrier  against  injurious  consequences 
erected  for  the  benefit  of  posterity. 

Hence  may  be  collected  both  the  origin  and  the 
policy  of  the  act  of  Parliament.  With  this  stat- 
ute before  them,  and  with  a  full  knowledge  of 
the  principles  and  policy  on  which  it  was  founded, 
the  several  states  ceded  to  Congress  "a  power 
to  promote  the  progress  of  science  and  the  use- 
ful arts,  by  securing  to  authors  and  inventors 
the  exclusive  right  to  their  writings  and  discov- 
eries." The  English  law  had  limited  the  right 
to  a  term  of  years.  The  power  ceded  by  our  Con- 
stitution was  to  secure  it  '•'-for  limited  times :" 
the  former  restricting  the  right  to  a  definite  pe- 
riod ;  the  latter  adopting  the  same  principle, 
but  leaving  the  quantum  of  interest  to  the  dis- 
cretion of  the  National  Legislature.  In  execu- 
tion of  this  power,  several  acts  have  been  passed 
by  Congress,  and  are  now  in  force,  defining  the 
limits  for  which  the  exclusive  rights  of  authors 
and  inventors  to  their  writings  and  discoveries 
shall  be  enjoyed,  and  securing  such  enjoyment 
for  different  periods  in  different  cases,  by  penal- 
ties and  other  appropriate  remedies  against  those 
who  violate  the  right. 

The  object,  therefore,  of  this  provision  of  the 
Constitution,  and  of  the  laws  enacted  in  virtue 
of  it,  is  twofold  :  first,  to  secure  to  inventors 
and  to  authors  a  reward  for  their  labours  ;  and, 
secondly,  to  secure  to  the  public  the  benefit  of 
their  works,  by  bringing  the  property  in  them 
into  the  common  stock,  after  the  expiration  of 
the   times    limited  for  the  exclusive   privilege  • 


CONSTITUTIONAL    JURISPRUDENCE.  245 

and  it  is  manifest  that  this  double  object  can  only 
be  effected  by  such  a  construction  of  the  Consti- 
tution as  will  leave  to  Congress  the  exclusive  power 
of  legislation  on  the  subject.  Prior  to  the  adop- 
tion of  the  Federal  Constitution,  legislative  acts 
in  favour  of  valuable  discoveries  and  improve- 
ments had  been  passed  in  several  of  the  states; 
but  their  efficacy  being  confined  to  the  limits  of 
those  states,  the  privileges  thus  secured  were  of 
little  value ;  and,  whatever  they  were  worth, 
all  these  state  enactments  ceased  as  soon  as  the 
Federal  Constitution  was  adopted.  For  greater 
caution,  however,  it  was  provided,  in  one  of  the 
first  acts  of  the  National  Legislature,  that  the  ap- 
plicant for  the  benefit  of  the  protection  of  Con- 
gress should  surrender  his  right  under  the  state 
law,  and  that  his  obtaining  a  patent  under  the 
laws  of  the  United  States  should  be  evidence  of 
such  surrender. 

An  important  and  protracted  controversy,  nev- 
ertheless, arose  in  the  State  of  New- York  as  to 
the  nature  and  extent  of  the  power  in  question, 
which  occupied,  at  different  times,  the  attention 
both  of  the  Legislature  and  courts  for  several 
years  before  it  was  happily  set  at  rest  by  the  Su- 
preme Court  of  the  United  States — not  by  an  ex- 
press construction  of  this  particular  power,  but 
by  a  series  of  decisions  upon  analogous  cases 
involving  similar  principles,  and  bearing  in  one 
case  on  the  subject  itself.  I  refer  to  the  case  of 
Livingston  and  Van  Ingen,  in  which  the  question 
arose  as  to  the  validity  of  the  grant  made  by  the 
Legislature  of  New-York  to  certain  individuals, 
of  the  exclusive  right  of  navigating  its  waters 
with  boats  propelled  by  means  of  fire  or  steam.* 
*  10  Wheat.,  466. 


246  LECTURES    OiN 

Before  the  adoption  of  the  present  Constitution, 
an  act  was  passed  by  the  Legislature  of  that  state 
granting  and  securing  to  one  John  Fitch  *'  the  sole 
right  and  advantage  of  employing  the  steamboat  hy 
him  lately  invented,''^  and  investing  him  and  his  rep- 
resentatives "  with  the  exclusive  right  and  privilege 
of  navigating  all  kinds  of  boats,  propelled  by  the  force 
of  fire  or  steam,  within  all  the  waters  within  the  ter- 
ritory and  jurisdiction  of"  the  State  of  New-York, 
"  for  the  term  of  twenty  years"  from  the  passing  of 
that  act,  in  March,  1789.  In  March,  1798,  nearly 
ten  years  subsequent  to  the  ratification  of  the  Fed- 
eral Constitution,  and  after  Congress  had  passed  that 
act,  in  execution  of  the  power  under  discussion, 
which  contains  the  provisions  requiring  the  surren- 
der by  applicants  under  it  of  the  state  rights  before 
granted  to  them,  another  act  was  passed  by  the 
Legislature  of  the  same  state,  of  which  the  pream- 
ble sets  forth,  "  that  Robert  R.  Livingston  had  rep- 
resented that  he  was  possessed  of  a  mode  of  apply- 
ing the  steam-engine  to  propel  a  boat  on  new  and 
advantageous  principles  ;  but  that  he  was  deterred 
from  carrying  it  into  efiect  by  the  uncertainty  and 
hazard  of  a  very  expensive  experiment,  unless  he 
could  be  assured  of  an  exclusive  advantage  from  it 
should  it  he  found  successful ;"  and  that  "  he  was  also 
deterred  from  the  enterprise  by  the  existence  of 
the  previous  act  in  favour  of  Fitch,  who  was  stated 
to  be  dead,  or  to  have  withdrawn  from  this  state 
icithout  having  made  any  attempt  to  execute  the  plan 
for  which  he  had  obtained  the  exclusive  privilege," 
whereby  it  was  alleged  to  have  been  justly  forfeited  : 
it  was  "  therefore  enacted  that  privileges  similar  to 
those  granted  to  John  Fitch"  should  be  extended  to 
Mr.  Livingston  and  his  representatives,  for  the  term 
of  twenty  years,  upon  condition  that  he  should,  with- 


CONSTITUTIONAL    JURISPRUDENCE.  247 

in  one  year,  build  a  boat  to  be  propelled  by  fire  or 
steam,  "  the  mean  rate  of  whose  progress  should  not 
be  less  than  four  miles  an  hour  ;  and  that  he  should 
at  no  time  omit,  for  the  space  of  one  year,  to  have  a 
boat,"  of  a  certain  construction,  ''  plying  between  the 
cities  of  New-York  and  Albany." 

These  conditions  not  having  been  performed  with- 
in the  period  specified,  the  time  for  fulfilling  them 
was  repeatedly  enlarged  by  successive  acts  of  the 
Legislature  for  the  purpose.  One  of  these,  passed 
after  the  former  ones  had  expired,  revived  the  privi- 
leges granted  by  them  in  favour  of  Robert  R.  Liv- 
ingston and  Robert  Fulton.  In  the  year  1807,  the 
proof  required  of  performance  of  the  first  condition 
of  the  grant  was  duly  exhibited,  and  a  boat  propelled 
by  steam,  at  the  rate  of  more  than  four  miles  an  hour, 
began  to  "  ply  between  the  cities  of  New- York  and 
Albany,"  in  piyisuance  of  the  second.  Other  boats 
were  subsequently  built  by  the  grantees  of  the  state, 
and  after  they  had  continued  for  some  years  in  suc- 
cessful operation,  rival  boats,  propelled  in  the  same 
manner,  were  established,  in  defiance  of  the  state 
grant,  both  on  the  Hudson  River  and  on  Lake  Cham- 
plain,  by  persons  denying  its  validity.  Application  for 
redress  was  speedily  made  by  Messrs.  Livingston 
and  Fulton  to  the  state  courts  of  New-York,  and  the 
question  presented  was,  whether  the  grant  made  to 
them  by  the  Legislature  was  not  absolutely  void,  as 
made  in  contravention  of  the  powers  of  Congress  to 
promote  the  progress  of  science  and  the  arts,  and  to 
regulate  commerce.  It  was  decided  in  the  Court  of 
Chancery  that  the  state  grant  was  void  on  the  ground 
alleged ;  but  on  an  appeal  to  the  Court  of  Errors  and 
Appeals,  that  decision  was  overruled,  and  it  was  de- 
clared by  this  tribunal  of  the  last  resort  in  the  state, 
that  the  grant  was  not  absolutely  void,  on  two  dis* 


24S  LECTURES   ON 

tinct  grounds,  viz. :  that,  considering  Messrs.  Liv- 
ingston and  Fulton  as  inventors,  the  state  had  a  con 
current  power  with  Congress  to  reward  them  as  such, 
by  the  grant  of  exclusive  privileges  to  be  exercised 
within  its  jurisdiction  ;  and,  secondly,  that,  consider- 
ing them  merely  as  the  possessors  and  importers  of  a 
foreign  invention,  the  state  had  an  independent  power 
to  reward  them  for  the  introduction  of  such  invention 
into  beneficial  use  upon  its  waters — a  power  not  ce- 
ded to  Congess  at  all.  It  was  observed,  however, 
by  one  of  the  judges,  that  "  if  the  opposite  party  could 
have  shown  aright  hy  patent  from  the  United  States, 
as  inventors,  they  must  have  prevailed,  and  the  state 
law  would  have  given  way  to  the  superior  power  cf. 
Congress."  For  it  must  be  borne  in  mind  that  the 
opponents  of  Messrs.  Livingston  and  Fulton  claimed 
no  right  or  title  whatsoever,  either  under  a  patent  or 
coasting  license  ;  and  for  aught  that  speared,  their 
mode  of  applying  the  steam-engine  in  the  navigation 
of  their  boats  might  be,  as  in  fact  it  was,  the  same 
which  had  been  introduced  by  the  grantees  of  the 
etate.* 

After  notice  of  an  appeal,  on  the  part  of  their  ad- 
versaries, to  the  Supreme  Court  of  the  United  States, 
Messrs.  Livingston  and  Fulton  offered  terms  of  com- 
promise which  were  too  advantageous  to  be  refused 
by  the  other  side,  and,  consequently,  these  questions 
were  not  then  carried  up  to  the  Federal  Court ;  and 
ill  the  subsequent  case,t  referred  to  in  a  former  lec- 
ture, the  question  respecting  the  nature  and  effect  ot 
the  power  to  promote  the  progress  of  science  and  the 
arts  did  not  arise.  That  case  turned  wholly  upon 
the  collision  between  the  exclusive  privilege  granted 
by  the  State  Legislature  and  the  power  of  Congies^ 

*  .Tohn.  Kep.,  537.  -f  10  Whca'  .  4'ir. 


CONSTITUTIONAL    JURISPRUDENCE.  249 

to  regulate  commerce  ;  and  the  state  laws  were  de- 
clared to  be  void,  merely  from  their  repugnance  to 
the  exercise  of  that  powder  by  the  Federal  Govern- 
ment, The  leading  principles,  however,  of  that  de- 
cision, as  well  as  much  of  the  reasoning  in  the  case 
relative  to  the  licenses  required  by  the  State  of  Ma- 
ryland from  importers  of  foreign  goods,  apply  with 
equal  force  to  the  power  now  under  discussion  ;  and 
Although  the  invalidity  of  the  state  grant  has  thus 
been  established,  and  the  question  relative  to  the  na- 
ture and  operation  of  a  patent  from  the  United  States 
can  never  arise  with  respect  to  that  grant,  yet  it  may 
become  material  in  other  controversies,  and,  from  its 
general  importance,  deserves  examination.  With 
all  due  deference  to  the  opinion  of  "  the  highest 
court  in  the  State"  of  New- York,  I  shall  endeavour 
to  show  the  obvious  meaning  of  the  Constitution  to 
be,  that  Congress  shall  secure  "  the  exclusive  rights 
of  authors  and  inventors  to  their  respective  writings 
and  discoveries,"  by  the  exercise  of  an  exclusive 
power  of  legislation. 

In  a  confederated  government,  extending,  like  ours 
over  many  independent  sovereignties,  it  seems  diffi- 
cult to  conceive  in  what  manner  the  right  in  question 
can  possibly  be  secured,  except  by  vesting  such  ex- 
clusive power  in  a  paramount  authority  ;  and  the  ne- 
cessity of  such  a  power  to  the  attainment  of  the  end 
was  an  adequate  reason  for  vesting  it  in  the  Supreme 
Legislature  of  the  Union.  The  power  under  consid- 
eration comes  under  that  class  of  cases  enumerated  in 
the  thirty-second  number  of  "  The  Federalist,"  to 
which  the  exercise  of  a  similar  power  in  the  states 
v/ould  be  repugnant  and  contradictory.  The  exam- 
ple which  the  learned  and  eloquent  author  of  that  pa- 
per selected  to  illustrate  his  reasoning  involved  a 
contjadiction  by  direct  implication,  from  the  force  oj 
U 


250  I.ECTURES    ON 

the  terms.  It  was  an  example  taken  from  the  powei 
of  Congress  to  establish  a  uniform  system  of  natu- 
ralization ;  and  it  was  argued  that  such  power  must 
necessarily  be  exclusive,  because,  if  each  state  had 
power  to  prescribe  a  distinct  rule,  the  rule  of  Con- 
gress could  not  be  uniform.  In  the  present  case,  the 
power  given  is  necessarily  exclusive,  both  from  the 
lenns  and  the  nature  of  the  grant.  The  words  are 
».hat  '*  Congress  shall  have  power  to  secure  the  ex- 
clusive rights  of  authors  and  inventors,  for  limited 
timesy  Now,  if  a  state  have  a  concurrent  power 
with  Congress  over  the  subject,  it  must  be  a  power 
arising  from  the  unceded  portion  of  its  sovereignty, 
and,  consequently,  a  powder  to  grant  without  limit  oj 
time.  But  how  could  Congress  secure  to  the  invent- 
or, ybr  a  limited  "period^  the  enjoyment  of  that  which 
the  state  might  grant  to  another  forever  ?  It  was 
said,  on  the  occasion  referred  to,  in  the  Court  of  Er- 
rors, by  one  of  its  most  eminent  judges,  "  that  if  an 
author  or  inventor,  instead  of  resorting  to  the  act  of 
Congress,  should  apply  to  the  State  Legislature  for 
an  exclusive  right  to  his  production,  there  is  nothing 
to  prevent  the  state  from  granting  such  exclusive 
privilege,  provided  it  be  confined  in  its  exercise  to 
the  particular  jurisdiction."  But,  with  all  due  sub- 
mission, if  this  opinion  be  correct,  one  of  two  things 
must  follow  :  either  that  Congress  may  secure  to  an 
inventor  or  author  an  exclusive  right  in  his  discovery 
or  writing,  and  the  state  secure  to  another,  either  as 
author  ox  possessor  of  the  same  invention,  the  exclu- 
sive right  to  use  it  within  its  own  jurisdiction  ;  oi 
that  Congress  cannot  secure  such  a  right  to  the  in- 
ventor after  the  state  has  secured  it  to  the  possessor. 
In  the  former  conclusion  this  consequence  seems  to 
be  involved :  that  Congress  may  grant  an  exclusive 
right  to  one  person  to  the  use  of  a  certain   thing 


CONSTITUTIONAL  JURISPRUDENCE.    251 

throughout  the  Union  ;  and  that  the  individual  state 
may  grant  an  exclusive  right  to  another  person  to 
use  the  same  thing  within  the  limits  of  a  particular 
district ;  or,  in  other  words,  that  over  the  same  sub- 
ject, and  within  the  same  jurisdiction,  two  co-ordi- 
nate powers  may  grant  exclusive  privileges  to  differ- 
ent persons.  The  other  branch  of  the  dilemma  sup- 
[)oses  the  state  to  derogate,  by  an  assumption  of  pow- 
er, from  the  express  terms  of  its  grant  to  the  Feder- 
al Government,  and  actually  to  exercise  an  exclusive 
power  to  secure  exclusive  privileges,  in  direct  con- 
tradiction to  the  terms  of  the  power  ceded  to  Con- 
gress. Nor  does  it  obviate  this  repugnancy  to  say 
that,  when  these  separate  powers  come  into  direct 
conflict,  the  grant  of  the  state  must  yield  to  "  the  su 
preme  law  of  the  land,"  because  the  repugnancy  is, 
from  the  nature  of  the  subject,  different  from  that 
arising  under  the  power  to  regulate  commerce,  and 
is  directly  deducible  from  the  propositions  themselves, 
and  not  from  any  casual  effects  or  consequences 
arising  from  the  accidental  collision  of  concurrent  or 
of  independent  powers. 

The  power  now  in  question  is,  moreover,  exclusive, 
from  the  nature  of  the  grant ;  because,  if  each  state 
have  a  concurrent  power,  its  exercise  would  defeat 
the  twofold  object  for  which  the  Federal  Constitu- 
tion intended  to  provide.  That  object,  we  have 
seen,  was  to  secure  to  the  public  the  benefit  and 
transmission  of  invention,  as  well  as  to  secure  to 
genius  a  reward  for  its  productions  and  discoveries, 
[hit  if  the  individual  states  have  a  concurrent  power 
with  Congress,  neither  branch  of  this  object  can  be 
secured  by  the  latter ;  for,  in  regard  to  the  former 
branch,  if  Congress  prescribe  fourteen  years  as  the 
limit  of  exclusive  rights,  and  render  them  common 
at  the  expiration  of  that  period,  each  state  might  fix 


252  LECTURES    ON 

a  different  period,  or  might  secure  a  right  of  property 
lO  authors  and  inventors  in  perpetuity.  Nor  could 
the  latter  branch  of  the  object  be  secured  by  Con- 
gress if  the  states  could  exercise  a  concurrent 
power;  because  each  state  might,  upon  that  suppo- 
sition, reduce  the  term  of  exclusive  enjoyment  to  a 
minimum,  or  declare,  at  once,  the  fruits  and  industry 
of  genius  to  be  common  property. 

The  arguments  against  the  exclusive  nature  of 
this  power  of  Congress,  drawn  from  the  nature  and 
effect  of  a  patent  in  merely  securing,  as  was  alleged, 
a  title  or  right  of  property,  without  conferring  a  right 
of  sale  or  of  use  ;  and  the  objection  deduced  from 
the  right  of  legislation  retained  by  the  states  in  regard 
to  their  purely  internal  trade  and  intercourse,  and 
their  police,  health,  and  inspection  laws,*  have,  in 
effect,  been  met  and  refuted  by  the  Supreme  Court, 
in  their  opinions  declaring  that  a  coasting  license 
not  only  ascertains  the  national  character  and  owner- 
ship of  a  vessel,  but  confers  a  right  of  navigation  ; 
that  a  right  to  import  goods  involves  the  right  to  sell 
them ;  and  that,  whenever  those  rights  come  into 
collision  with  state  laws,  passed  in  virtue  either  of  a 
concurrent  or  of  an  independent  right  of  legislation, 
on  these,  or  any  otl^r  subjects,  and  the  exercise  of 
the  Federal  and  state  authorities  are  found  repug- 
nant or  irreconcilable  to  each  other,  the  state  law 
must  yield  to  the  superior  power  of  Congress.  So 
a  patent  or  a  copy -right  not  only  ascertains  the  title 
of  the  patentee  or  author,  but  confers  the  same  para- 
mount right  of  using,  and  vending  to  others  to  use, 
their  respective  discoveries  and  writings. 

In  applying,  however,  the  reasoning  of  Chief-jus- 

*  Vide  a  pamphlet  entitled  "A  Vindication  of  the  Laws  of  New 
York,  granting  exclusive  privileges  to  Robert  U.  Livingston  and 
Itobert  Fulton,"  by  Cadwallader  D.  Golden,  Esq.,  Albany,  1818 


CONSTITUTIONAL    JURISPRUDENCE.         253 

tice  Marshall  to  the  case  of  a  patent  or  copy-right,  it 
IS,  perhaps,  necessary  to  remark,  that  the  property 
which  an  author  may  have  in  his  Avritings  appears 
to  be  somewhat  different  from  that  which  an  inventor 
may  have  in  his  discoveries.  The  former  has  no 
beneficial  use  or  property  whatever  in  his  writings, 
independently  of  that  which  may  be  derived  from  the 
sale  of  them.  The  latter  may,  though  in  a  very  re- 
stricted sense,  use  his  invention  for  purposes  of 
profit ;  to  both,  however,  a  right  of  sale  is  indispen- 
sable, but  more  manifestly  so  in  the  first  case  than 
in  the  last.  Every  other  subject  of  property  may  be 
partially  enjoyed,  though  the  right  of  sale  be  restrict- 
ed or  forbidden  ;  but  the  right  of  property  of  authors 
and  inventors  is  so  essentially  connected  with  the 
right  of  sale,  that  the  inhibition  of  that  right  anni- 
hilates the  whole  subject.  The  right  of  sale,  in 
these  instances,  therefore,  is  an  elementary  princi- 
ple in  the  very  idea  of  property.  Separate  it  from 
the  rest,  and  the  complex  legal  notion  of  property  is 
destroyed :  the  value — the  thing  intended  to  be  se- 
cured, is  lost  to  it.  All  human  laws  proceed  upon 
the  assumption  of  value  as  implicitly  involved  in  the 
idea  of  property  ;  and  as  new  discoveries  in  science, 
and  new  improvements  in  the  arts,  give  rise  to  new 
m.odifications  of  property,  the  first  thing  that  attracts 
the  attention  of  the  Legislature  to  any  subject  as  be- 
ing capable  of  appropriation  or  exclusive  ownership 
is  its  VALUE.  Accordingly,  we  find  that  the  laws 
passed  by  Congress*  in  virtue  of  the  Constitutional 
power  now  in  question,  secure  to  an  author  or  his 
assignee  "  the  sole  right  and  liberty  of  printing,  re- 
printing, publishing,  and  vending^^  his  work ;  and  to 
a  patentee,  "  the  full  and  exclusive  right  and  liberty 

»  Laws  U.  S.,  1  Cong.,  2  Sess.,  ch.  xv. ,   2  Cong.,  2  Sess.,  ch.  xl 


254  LECTURES    QN 

of  making,  constructing,  using,  and  vending  to  others 
to  be  used,"  his  invention  or  discovery  within  the 
several  times  limited  for  the  enjoyment  of  their 
respective  privileges. 

How  far  the  exercise  of  this  right  of  property  is 
liable  to  be  controlled  and  regulated  by  the  municipal 
laws  of  the  several  states,  depends,  in  a  great  meas- 
ure, on  the  principles  recognised  and  established, 
in  the  two  cases  to  which  I  have  so  often  referred, 
as  decided  in  the  Supreme  Court  of  the  United 
States.  In  the  prior  case,*  decided  in  the  Court  of 
Errors  of  the  State  of  New- York,  it  was  held  that 
the  Legislature  of  a  state  may  prohibit  the  use  of  any 
particular  invention,  as  noxious  to  the  health,  injuri- 
ous to  the  morals,  or  in  any  respect  prejudicial  to 
the  welfare  of  its  citizens.  But,  in  addition  to  the 
qualifications  which  this  assertion  must  receive  from 
the  doctrine  of  the  Supreme  Court,  it  seems  to  mo 
that  the  Government  of  the  Union  must  possess  ex- 
clusively the  power  of  determining  whether  an  in- 
vention for  which  a  patent  is  sought  be  useful  or 
pernicious ;  or,  in  other  words,  whether  it  be  one 
for  which  a  patent  ought  to  be  granted.  The  object 
of  the  constitutional  power  of  Congress  is  the  pro- 
motion of  the  "  useful  arts  ;"  an  invention  useless  or 
pernicious  would  not  be  a  proper  subject  for  its  ex- 
ercise ;  but  should  a  patent  for  such  an  invention 
have  unadvisedly  issued,  there  can  be  no  doubt  that 
the  Federal  authority  might  repeal  the  patent,  and 
interdict  the  use  of  the  noxious  discovery.  If  a 
thing  ill  itself  pernicious  be  patented,  the  patentee 
could  recover  no  damages  for  the  violation  of  his 
right,  as  his  patent  would  confer  no  right  of  property 
upon  him.     If  it  be  useful  in  itself,  but  the  art  or 

*  9  \.  R.,  507. 


t;ONSriTUTIONAL    JURISPRUDENCE.  255 

manufacture  to  which  it  relates  be  injurious,  in  its 
exercise,  to  the  public  health,  the  patent  would  af- 
ford no  protection  for  the  nuisance,  because  private 
interests  must  yield  to  the  public  good,  and  not  be- 
cause the  Federal  power  is  superseded  or  controlled 
by  the  state  law.  So,  if  the  author  of  an  immoral  or 
libellous  book  prosecute  for  the  invasion  of  his  copy- 
right, he  could  receive  no  indemnity  ;  and  if  prose- 
cuted for  his  offence  against  the  state  law,  in  issuing 
such  a  publication,  the  authority  of  the  United  States 
would  not  protect  him,  as,  in  the  one  case,  his  copy- 
right would  invest  him  with  no  right  of  property,  and, 
in  the  other,  would  convey  no  right  to  use  his  prop- 
erty to  the  injury  of  others.  Nor  would  the  patentee 
of  a  newly-invented  vehicle,  any  more  than  the  owner 
of  a  post-coach  conveying  the  mail  of  the  United 
States,  be  entitled  to  pass  over  a  state  turnpike-road 
without  paying  the  toll,  nor  a  patented  steamboat 
permitted  to  ply  on  a  ferry  established  by  state  au- 
thority, without  being  subjected  to  the  accustomed 
ferriage,  or  to  the  penalties  provided  in  cases  of  such 
violation  of  the  particular  right  to  the  ferry,  any  more 
than  that  or  any  other  vessel  would  be  exempted  from 
them  by  a  coasting  license.  Restrictions  of  this  na- 
ture are  general  in  their  operation!  They  are  not 
confined  to  the  'patentee,  and  in  no  sense  do  they 
derogate  from  the  exclusive  power  of  Congress  in 
relation  to  the  promotion  of  science  and  the  useful 
arts.  But  a  construction  of  the  Constitution  admit- 
ting that  the  states,  in  the  exercise  of  an  absolute 
discretion,  may  prohibit  the  introduction  or  use  of 
any  particular  invention  for  which  a  patent  had  been 
regularly  obtained,  would  render  the  power  in  ques- 
tion completely  nugatory,  and  the  states  would  re- 
tain substantially  the  very  power  they  had  nominally 
parted  with. 


256  LECTURES    ON 

This  power  of  securing  to  authors  and  inveMors  a 
right  of  beneficial  ownership  in  their  writings  and 
discoveries  has  been  surrendered  to  Congress,  and 
any  encouragement  to  invention,  invitation  to  the  in- 
troduction of  improvements,  or  attempt  to  promote  the 
progress  of  literature,  science,  and  the  arts,  which 
interferes  with,  or  prevents  the  exercise  of  that  power, 
is  an  assumption  of  authority  fairly,  and  on  good  con- 
sideration, yielded  to  the  General  Government.  The 
several  states,  nevertheless,  retain  all  other  means 
of  securing  rewards  to  genius,  of  promoting  learning 
and  science,  of  encouraging  new  discoveries,  and 
inviting  improvements  in  the  arts,  except  the  power 
thus  ceded  to  the  Union.  And  although  an  indi- 
vidual state  can  neither  secure  to  an  inventor  an  ex- 
clusive property  in  his  invention,  nor,  for  any  known 
and  used  improvement,  grant  exclusive  privileges  in 
the  use  of  anything  that  may  become  the  subject  of 
a  patent,  yet  it  may  promote  the  progress  of  learn- 
ing, encourage  new  discoveries  in  science,  and  in- 
vite the  introduction  of  new  improvements  in  all  the 
liberal  and  useful  arts,  in  any  other  way  that  human 
ingenuity  can  devise,  or  good  policy  may  dictate, 
and  which  does  not  interfere  with  the  exercise  of 
the  power  vested  for  the  same  purposes  in  Con- 
gress. And  the  reason  of  the  difference  is  simply 
this  :  that  all  the  other  modes  of  effecting  those  ob- 
jects may,  without  danger  of  being  defeated  by  the 
clashing  laws  of  co-ordinate  legislatures,  be  safely 
committed  to  the  several  states,  while  the  simple 
mode  of  securing  the  right  of  property  must  be  pos- 
sessed by  the  supreme  Federal  authority  alone  ;  for, 
in  the  peculiar  condition  and  circumstances  of  the 
country,  that  end  cannot  otherwise  be  effected.       . 

II.  The  power  vested  in  Congress  "  io  exercise  ex* 
elusive  legislation^  in  all  cases  lohatsoever,  over  such 


CONSTITUTIONAL  JURISPRUDENCE.    257 

district,  not  exceeding  ten  miles  square,  as  ??iay,  by 
cession  of  jmrticular  states,  and  the  acceptance  of  Con- 
gress, become  the  seat  of  the  Government  oj  the  United 
States;  and  to  exercise  like  authority  over  all  places 
^purchased  by  the  consent  of  the  legislatures  of  the 
states  in  which  the  same  shall  be  situated,  for  the  erec- 
tion of  forts,  magazines,  arsenals,  dockyards,  and  oth- 
er needful  buildings.''^ 

This  power  was  granted  to  Congress  from  a  con- 
viction of  the  indispensable  necessity  of  investing  that 
body  with  complete  supremacy  and  control  at  the 
seat  of  the  National  Government.  Without  the  pos- 
session of  such  a  power,  the  Federal  authority  might 
be  insulted,  and  its  proceedings  interrupted  with  im- 
punity ;  and  the  depend ance  of  the  functionaries  of 
the  General  Government  on  one  of  the  states  for  pro- 
tection in  the  exercise  of  their  duties,  might  subject 
the  national  councils  to  the  imputation  of  partiality, 
and  be  productive  of  an  influence  equally  dishonour- 
able to  the  government,  and  dissatisfactory  to  the 
other  membei^  of  the  Union.  This  consideration 
was  of  greater  weight,  as  the  public  archives  liable 
to  destruction  would  accumulate,  and  the  gradual 
multiplication  of  public  improvements  at  the  perma- 
nent residence  of  the  National  Government  would, 
it  w^as  thought,  create  so  many  additional  obstacles 
to  its  removal,  and  still  farther  abridge  its  necessary 
independence.  The  necessity  of  a  like  authority 
over  the  forts,  arsenals,  and  dockyards,  and  their  ap- 
pendages, established  by  the  Federal  Government, 
was  supposed  to  be  not  less  evident.  The  public 
money  expended  on  such  establishments,  and  the  pub- 
lic property  deposited  in  them,  require  their  exemption 
from  the  local  authority  of  the  state  where  they  aro 
situated.  Nor  would  it  be  proper  that  places  on  which 
the  security  of  the  entire  Union  may  depend  should 


258  LECTURES    ON 

be  in  any  degree  dependant  on  a  particular  member; 
and  all  objections  and  scruples  were  obviated  by  re- 
quiring the  concurrence  of  the  states  concerned  in 
every  such  establishment. 

The  cessions  of  territory  contemplated  by  the  Con- 
stitution were  duly  made  by  the  States  of  Maryland 
and  Virginia,  whereby  Congress  was  enabled  to  ex- 
ecute this  power  by  establishing,  under  its  own  juris- 
diction, a  permanent  seat  for  the  National  Govern- 
ment. This  territory  was  erected  into  a  *'  district," 
under  the  exclusive  jurisdiction  of  Congress,  by  the 
name  of  the  "  District  of  Columbia."  The  City  of 
''  Washington"  was  built,  and  the  necessary  edili- 
ces  for  the  accommodation  of  all  the  different  branch- 
es of  the  Federal  Government  were  erected  on  the 
banks  of  the  Potomac,  in  conformity  with  a  favourite 
wish  of  General  Washington,  and  almost  in  sight  of 
the  place  of  his  residence  in  life,  and  of  his  repose  in 
death.  The  seat  of  government  was  removed  thence 
at  the  commencement  of  the  present  century.  Muni- 
cipal corporations  were  created  by  Coi^ress  for  man- 
aging the  local  concerns  of  the  "  Federal  city,"  and 
of  the  cities  of  Georgetown  and  Alexandria  situated 
within  the  "  ten  miles  square,"  ceded  by  the  respec- 
tive states  within  whose  limits  they  had  been  hitherto 
confined.  Laws  have  from  time  to  time  been  pass- 
ed by  Congress  for  the  government  of  the  District  of 
Columbia,  and  local  courts  established,  as  we  have 
seen,  for  the  administration  of  justice  within  its  lim- 
its. But  the  acts  of  Congress  adopted  the  laws  of 
Maryland  and  Virginia  as  the  laws  of  the  several 
portions  of  the  district  ceded  by  those  states  respect- 
ively, with  such  alterations  only  as  were  rendered 
necessary  by  the  change  of  jurisdiction.*     Nor  wxre 

*  1  Cranch,  252. 


CONSTITUTIONAL  JURISPRUDENCE.     259 

the  separation  of  the  territory  and  the  transfer  of  the 
jurisdiction  permitted  to  affect  existing  contracts  be- 
tween individuals.  * 

Although  the  inhabitants  of  the  District  of  Colum- 
bia, by  its  separation  from  Maryland  and  Virginia, 
ceased  to  be  citizens  of  those  respective  states,  yet, 
as  citizens  of  the  United  States,  they  are  entitled  to 
the  benefit  of  all  commercial  and  political  treaties 
with  foreign  powers,  and  to  the  protection  of  the 
Union  at  home,  as  well  as  abroad. t  And  notwith- 
standing the  power  of  Congress  to  exercise  exclu- 
sive legislation  over  this  Federal  territory  includes 
the  power  of  taxing  its  inhabitants,  they  do  not  in 
any  manner  participate  in  the  election  of  members 
of  the  House  of  Representatives.  I  have  already 
had  occasion  to  explain  upon  what  principles  this 
anomaly  in  the  Constitution  has  been  justified  ;J  and 
it  may  now  be  added,  that  the  adequate  provisions 
lor  their  local  government,  and  the  advantages  deri- 
ved from  the  residence  of  the  General  Government, 
are  deemed  by  the  inhabitants  themselves  sufficient 
to  counterbalance  their  political  disabilities  ;  that  no 
public  inconvenience  has  been  experienced  from  their 
existence  ;  and  that  the  circumstance  was  known  be- 
fore the  cession  of  the  territory,  and  when  the  in- 
habitants voluntarily  established  their  residence  with- 
in it. 

III.  The  next  power  falling  within  this  miscella- 
neous class  is  the  power  of  Congress  "  to  declare 
the  punishment  of  treason^''  against  the  United  States. 

It  is  a  general  principle,  that  every  government 
contains  within  itself  the  means  and  capacity  for  its 
own  preservation.  Had  the  express  enumeration, 
therefore,  of  this  power  been  omitted  in  the  Consti 

•  6  Cranch,  192.  t  2  ib.,  243.  X  5  Wheaton,  324. 


260  LECTURES    ON 

tulion,  it  could  not  have  been  intendeti  tbat  the  Fed 
eral  Government  was  to  depend  upon  the  individua 
states  to  protect  it  from  treason  and  conspiracies  ; 
yet,  to  have  left  the  power  of  self-defence  to  inference 
or  argument,  would  have  been  unwise  and  unsafe. 
As  the  fcrime  of  treason  against  the  United  States  was 
one  which  might  be  committed,  the  United  States 
themselves  might,  without  this  express  authority ,  have 
punished  its  perpetrators  ;  but  as  artificial  and  con- 
structive treasons  had  been  frequently  made  engines 
of  oppression  by  tyrannical  governments,  and,  during 
the  prevalence  of  vindictive  factions,  by  such  as 
were  comparatively  free,  it  was  deemed  expedient 
to  insert  in  the  Constitution  a  definition  of  the  crime, 
to  prescribe  the  proof  necessary  for  conviction,  and 
to  restrain  Congress,  in  punishing  it,  from  extending 
the  consequences  of  guilt  beyond  the  person  of  its 
author. 

Treason  against  the  United  States  is,  accordingly, 
declared  to  "  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort."  The  term  *'  levying  war"  is  of 
technical  signification,  and  is  adopted  from  the  Eng- 
lish statute  of  treasons,  and  receives  the  same  con- 
struction with  us  which  has  been  given  to  it  in  Eng- 
land ;  and  the  "  war,"  included  in  the  term,  embra- 
ces internal  rebellion,  as  well  as  hostilities  from  with- 
out. A  conspiracy  to  subvert  by  force  the  govern- 
ment of  the  United  States,  violently  to  dismember 
the  Union,  to  coerce  the  repeal  of  a  general  law,  or 
to  revolutionize  a  territorial  government  by  force,  if 
carried  into  effect,  by  imbodying  and  assembling 
an  armed  force  in  a  military  posture,  is  an  overt  act 
of  levying  war  ;  and  not  only  those  who  bear  arms, 
but  those  who  perform  the  various  essential  parts 
which  must  be  assigned  to  dilferent  persons  for  th^ 


CONSTITUTIONAL    JURISPRUDENCE.  261 

purpose  of  proseciuing  the  war,  are  guilty  of  the 
crime.*  But  a  mere  conspiracy  for  any  such  pur- 
pose, unaccompanied  by  any  overt  act,  is  not  treason  ; 
and  to  constitute  a  "  levying  of  war,"  there  must  be 
an  assemblage  of  persons,  with  intent  to  effect  by 
force  a  treasonable  purpose. f  The  mere  enlistment 
of  men  for  the  purpose  is  not  sufficient.  Nor  is  it 
necessary,  on  the  other  hand,  that  an  individual  should 
•ppear  in  arms  against  his  country  to  constitute  the 
fviXi  of  treason.  If  v/ar  be  actually  levied,  that  is. 
'if  a  body  of  men  be  actually  assembled  in  arms  fox 
.he  purpose  of  effecting  by  force  a  treasonable  de- 
sign, all  those  who  perform  any  part  in  the  conspira* 
cy,  however  minute,  or  however  remote  themselve? 
horn,  the  scene  of  action,  if  actually  leagued  in  the 
general  enterprise,  are  considered  as  traitors.  Simi- 
tar acts  committed  against  the  government  or  laws  o^ 
a  particular  state  are  punishable  according  to  tho 
;.aw  of  that  state,  but  adhering  to  a  foreign  nation  at 
war  with  the  United  States,  and  affording  it  aid  in 
vhe  prosecution  of  hostilities,  is  treason  against  tha 
United  States,  and  not  against  the  particular  state  of 
which  the  party  is  a  citizen.J 

The  Constitution  farther  declares,  that  "  no  person 
shall  be  convicted  of  treason  unless  on  the  testimo- 
ny of  two  witnesses  to  the  same  overt  acl,  or  on  con- 
Cession  in  open  court."  A  confession  out  of  court, 
although  before  a  magistrate,  is  not  sufficient  ;§  but 
after  the  treason  is  proved  by  two  witnesses,  such 
confession  may  be  given  in  evidence  by  way  of  cor- 
roboration. The  testimony  of  the  two  witnesses 
must  be  to  the  same  overt  act,  and  not,  as  in  Eng- 
land, to  two  different  overt  acts  of  the  same  treason. 
The  restriction  on  Congress  with  respect  to  the  pun- 

*  4  Ciancli,  470.         t  4  ih.,  75-12G.        t  H  J-  R-,  553. 
6  Frics's  Case,  in  V>.  S.  Clrc.  Ct.  for  Pennsylvania. 


262  LECTURES    ON 

ishment  is,  that  "  no  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture,  except  during  the 
life  of  the  person  attainted."  Corruption  of  blood,  in 
common  with  many  better  things,  we  derive  again 
from  the  common  law.  It  signifies  that  an  attaint- 
ed person  can  neither  inherit  land  from  his  ancestors, 
retain  that  of  which  he  is  in  possession,  nor  transmit 
it  to  his  heirs  ;  and  that  he  is,  moreover,  incapable  of 
transmitting  a  title  derived  by  descent  through  him, 
even  from  a  remote  ancestor.  This  is  visiting  the 
sins  of  the  fathers  upon  the  children  with  a  ven- 
geance, as  it  is  not  confined  to  the  third  and  fourth 
generations,  but  extends  to  a  man's  latest  posterity. 
The  doctrine  is  founded  upon  a  legal  fiction ;  and  is 
equally  at  variance  with  the  liberal  principles  of  mod- 
ern times,  and  the  very  elements  of  justice.  And 
in  carrying  this  power  into  execution.  Congress  has 
humanely  stopped  short  of  their  constitutional  author- 
ity ;  for,  in  affixing  the  punishment  of  death  to  the 
crime  of  treason,  it  has  declared,  that  "no  conviction 
or  judgment  shall  work  corruption  of  blood,  ^r  any 
forfeiture  of  estate  •^''  thus  acting  upon  a  constriction 
of  the  Constitution  which  assumes  a  discretion  in 
omitting  the  latter  as  a  part  of  the  punishment  of 
treason,  even  during  the  life  of  the  offender  himself. 

IV.  The  fourth  power  of  a  miscellaneous  nature 
vested  in  Congress  is  that  of  "  admitting  new  states 
into  the  Unions 

No  provision  of  this  kind  was  made  in  the  Articles 
of  Confederation,  and  great  inconvenience,  and  much 
assumption  of  power,  were  the  necessary  consequen- 
ces. With  great  propriety  and  advantage,  therefore, 
the  new  Constitution  supplied  this  /lefect.  But  t*he 
power  was  not  granted  without  restriction  ;  for  "  no 
new  state"  can  *'  be  formed  or  erected  within  the  juris- 
diction of  any  other  state  ;  nor  can  any  state  be  form* 


CONSTITUTIONAL    JURISPRUDENCE.  263 

cd  by  the  junciion  of  two  or  more  states,  without  the 
consent  of  the  legislatures  of  the  states  concerned, 
as  well  as  of  Congress."  These  precautions,  which 
prevent  eiilier  the  partition  of  a  large  state,  or  the 
junction  of  small  ones,  without  their  consent,  were 
necessary  to  allay  the  jealousies  existing  on  the  sub- 
ject, both  in  the  more  powerful  and  in  the  weaker 
nu;mbers  of  the  conl'ederacy. 

Upon  the  purchase  of  Louisiana  by  the  United 
Slates,  some  doubt  was  entertained  whether  the 
power  of  the  General  Government  to  admit  new 
states  into  the  Union  extended  to  territories  not  com- 
prised within  the  boundaries  of  the  United  States  at 
the  adoption  of  the  Constitution.  This  question,  al- 
though never  presented  in  a  form  for  judicial  decis- 
ion, was,  however,  decided  in  the  aliirmative  by  large 
majorities  of  both  houses  of  Congress,  on  the  sever- 
al occasions  of  admitting  diflerent  parts  of  that  prov- 
ince into  the  Union,  as  the  separate  States  of  Lou- 
isiana, Mississippi,  iMissouri,  and  Arkansas  ;  which 
acis"were  severally  approved  by  successive  chief 
magistrates  of  the  Union.  It  must  therefore  be  con- 
sidered as  practically  settled,  and  it  would  savour  too 
much  of  the  spirit  of  controversy,  and  betray  too  much 
self-con lidence,  to  ofier,  at  this  time  of  day,  any  ar- 
gument in  support  of  the  negative  side  of  that  ques- 
tion, and  to  assert  that  such  a  measure  required  not 
only  the  consent  of  the  inhabitants  of  the  territory, 
but  an  amendment  of  the  Constitution  to  render  it 
valid.  All  doubt,  indeed,  seems  long  since  to  have 
subsided,  and  public  ophiion  has  sustained  the  gov- 
ernment in  this  exercise  of  the  power  in  question,  on 
the  ground  of  constitutional  right,  as  strongly  as  it 
has  been  declared  in  favour  of  its  policy. 

V.  The  power  "  to  dispose  of  and  make  all  need- 
ful regulations  respecting  the  territory  or  other  prop- 


264  LECTURES    ON 

erty  belonging  to  the  United  States,"  is  the  next  ono 
comprehended  in  this  class. 

It  was  required  that  this  power  should  be  vested 
in  Congress,  by  considerations  similar  to  those  upon 
which  rests  the  propriety  of  its  possessing  the  power 
next  preceding  it ;  and  it  is  accompanied  by  a  condi- 
tion, not  only  proper  in  itself,  but  which  was  proba- 
bly rendered  absolutely  necessary  by  the  jealousies 
and  controversies  that  existed  concerning  the  West- 
ern territory,  and  which  provides  that  "  nothing  in 
the  Constitution  shall  be  so  construed  as  to  preju- 
dice any  claims  of  the  United  States,  or  of  any  par- 
ticular state." 

The  authority,  thus  restricted,  is  adapted  to  all  the 
territorial  rights  of  the  Federal  Government,  beyond 
the  limits  of  any  of  the  states  ;  but  is  not  applicable, 
it  seems,  to  a  fortress  which  has  never  been  actually 
ceded  to  the  United  States ;  nor  to  any  land  occu- 
pied by  the  General  Government  for  any  similar  pur- 
pose, with  the  tacit  consent  of  the  state,  although 
the  title  to  the  soil  may  have  been  conveyed  to  the 
United  States.  It  is  under  this  power  that  Congress 
claims  authority  to  legislate  for  the  Territories,  erect- 
ed in  provinces,  acquired,  like  Louisiana  and  the 
Floridas,  since  the  adoption  of  the  Federal  Constitu- 
tion. But  if  the  Federal  Government  possessed  au- 
thority to  purchase  them,  there  seems  no  necessity 
for  resting  the  right  of  legislation  in  regard  to  them 
on  such  narrow  and  insufficient  grounds,  for  the  pow- 
er of  governing  a  territory  is  the  inevitable  conse- 
quence of  the  right  to  acquire  and  hold  it. 

VI.  The  guarantee  by  the  "United  States  to  ev- 
ery state  in  the  Union  of  a  Republican  form  of  gov- 
ernment ;  to  protect  each  of  them  against  invasion  ; 
Hnd  on  application  of  the  Legislature,  or  of  the  ex- 
ecutive, when  the  Legislature  cannot  be  convened 


CONSTITUTIONAL    JURISPRUDENCE.  265 

against  domestic  violence,"  may  also  be  classed 
among  the  miscellaneous  powers  of  the  Federal 
Government,  as  it  gives  to  it  a  right  of  interference 
to  effect  the  objects  of  the  guarantee. 

Governments  of  dissimilar  principles  and  forms 
have  been  found  less  adapted  to  a  Federal  coalition 
of  any  sort,  than  those  of  a  kindred  nature.  In  a 
confederacy  founded  on  Republican  principles,  and 
composed  of  Republican  members,  the  paramount  su- 
perintending government  created  by  it  ought  certain- 
ly to  possess  the  authority  to  defend  the  whole  sy? 
tern  against  innovation  ;  and  the  more  intimate  tho 
union,  the  greater  the  interests  of  its  members  ir 
the  separate  institutions  of  each  other,  and  the  great- 
er the  right  to  insist  that  the  respective  forms  of  gov- 
ernment under  which  the  general  compact  was  en- 
tered into  should  be  substantially  maintained.  But 
a  right  implies  a  remedy,  and  nowhere  else  could  an 
effectual  remedy  be  found  in  such  a  case  than  where 
it  is  actually  deposited  by  the  Constitution.  The  mere 
stipulation,  w^ithout  the  power  to  enforce  its  observ- 
ance, would  be  of  little  value  ;  hence  the  term  "  guar- 
antee'^ indicates  that  the  United  States  are  authorized 
to  oppose,  and,  if  possible,  prevent  every  state  in 
the  Union  from  abandoning  the  Republican  form  of 
government.  But  the  authority  extends  no  farther, 
and  it  presumes  the  pre-existence  of  governments  of 
the  form  guarantied.  So  long,  therefore,  as  the  Re- 
publican forms  existing  at  the  time  the  Constitution 
was  adopted  are  continued  by  the  states,  they  are 
guarantied  by  the  Federal  Government,  and  the  Fed- 
eral Constitution  imposes  no  other  restriction  upon 
the  alteration  of  the  respective  state  constitutions 
than  that  they  shall  not  vary  from  the  Republican 
form.  Whenever  a  state  may  choose  to  substitute 
another  Republican  government  in  place  of  that  pre- 
X 


266  LECTURES    ON 

viousiy  existing,  it  has  a  right  so  to  do,  and  is  equal 
ly  entitled  to  claim  for  it  the  benefit  of  a  Federal 
guarantee. 

Protection  against  invasion  is  due  from  every  so 
ciety  to  the  members  composing  it,  and  the  latitude 
of  the  expressions  used  in  the  Constitution  secures 
each  state,  not  only  from  foreign  hostility,  but  against 
the  ambitious  or  vindictive  enterprise  of  its  more 
powerful  neighbours.  The  protection  against  do- 
mestic violence  is  added  with  equal  policy  and  pro- 
priety, as  it  aflfords  the  means  of  enforcing  the  guar- 
antee before  provided  for,  whenever  a  faction  or  mi- 
nority in  a  state  endeavours  by  violence  to  subvert 
the  Republican  form  of  its  Constitution.  It  is  by  no 
means,  however,  confined  to  that  particular  case,  nor 
that  particular  object,  but  extends  to  protection  against 
the  acts  even  of  a  majority  of  the  people  of  a  state, 
when  directed  to  any  object  of  unconstitutional  vio- 
lence. For,  although  it  may  at  the  first  view  ap- 
pear inconsistent  with  the  Republican  theory  either 
that  the  minority  will  have  the  power,  or  that  a  ma- 
jority have  not  the  right  to  subvert  the  government, 
yet  mere  speculative  reasoning  must  in  these  cases, 
as  in  all  others,  be  qualified  by  the  lessons  of  prac- 
tice and  experience. 

Unlawful  combinations  for  purposes  of  violence 
may  be  formed  by  a  majority  of  persons  in  a  state, 
especially  in  a  slaveholding  state,  as  well  as  by  a 
majority  of  a  county,  or  other  subdivision  of  a  state  ; 
and  if  the  authority  of  the  state  is  bound  in  the  lat- 
ter case  to  protect  the  local  magistracy,  the  Govern- 
ment of  the  Union  is  equally  bound  in  the  former  to 
protect  the  state  authority.  Besides,  there  are  cer- 
tain parts  of  the  state  constitutions  which  are  so  in- 
terwoven with  the  Federal  compact,  that  a  violent 
assault   cannot  be  made  on  the  one  without  injury 


CONSTITUTIONAL    JURISPRUDENCE.  5^67 

io  the  other.  The  power  in  question,  however,  can 
only  be  exercised  when  the  blow  is  directed  against 
the  state  constitution  and  authority,  or  when  it  inci- 
dentally  or  indirectly  affects  the  Government  of  the 
United  States.  Where  the  violence  is  immediately 
directed  against  the  Federal  authority,  the  General 
Government  is  invested  with  power  to  suppress  it, 
independently  of  any  requisition  of  the  state  govern- 
ment. But  insurrections  against  the  state  govern- 
ments will  rarely  require  Federal  interposition,  un- 
less the  number  of  those  concerned  in  them  bears 
some  proportion  to  the  friends  of  the  state  constitu- 
tion ;  and  it  will  then  be  much  better  that  the  violence 
should  be  suppressed  by  the  superintending  power, 
than  that  even  a  majority  in  a  state  should  be  left 
to  maintain  its  cause  by  a  bloody  and  obstinate  con- 
test. The  existence  itself  of  the  right  of  the  Gen- 
eral Government  to  interpose  will,  however,  general 
ly  prevent  the  necessity  of  exercising  the  power  ;  and 
in  cases  where  it  may  be  doubtful  on  which  side 
justice  lies,  no  better  umpire  could  be  desired  in  a 
state  quarrel  than  the  representative  authority  of  the 
Union,  who  would  be  free  from  the  influence  of  local 
interests,  and  from  participation  in  local  or  personal 
animosities. 

VII.  The  power  of  Congress  to  "'propose  amend- 
ments to  the  Constitution,  and  call  conventions  for  the 
purpose"  is  the  last  to  be  referred  to  in  this  class  oi 
the  Federal  powers. 

That  useful  alterations  would  be  suggested  by  ex- 
perience, could  not  but  have  been  foreseen  by  the 
framers  of  the  Constitution.  It  was  requisite,  there- 
fore, that  a  mode  for  introducing  amendments  should 
he  provided  ;  and  that  which  was  adopted  guards 
equally  against  that  extreme  facility  which  would 
render  the  Constitution  too  mutable,  and  the  extreme 


268  LECTURES    ON 

difficulty  which  might  perpetuate  its  faults.  The 
article  in  question  provides  that  "  Congress,  when- 
ever two  thirds  of  both  houses  shall  deem  it  neces- 
sary, shall  propose  amendments  to  the  Constitution  ; 
or,  on  the  application  of  the  leojislatures  of  the  sev- 
eral states,  shall  call  a  convention  for  proposing 
amendments,  which,  in  either  case,  shall  be  valid  to 
all  intents  and  purposes,  as  part  of  the  Constitution, 
when  ratified  by  the  legislatures  of  three  fourths  oi 
the  states,  or  by  conventions  in  three  fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  Congress  :  provided  that  no  amendment, 
which  may  be  made  prior  to  the  year  1808,  shall  in 
any  manner  affect"  the  previous  provisions  respect- 
ing the  importation  of  slaves,  and  the  proportional 
imposition  of  capitation  and  other  direct  taxes  ;  *'  and 
that  no  state,  without  its  consent,  shall  be  deprived 
of  its  equal  suffrage  in  the  Senate." 

Thus  the  General  and  State  Governments  are  equal- 
ly enabled  to  originate  amendments,  as  their  neces- 
sity is  pointed  out  by  experience ;  and  I  have  al- 
ready had  occasion  to  remark  that  those  proposed  or 
adopted  since  the  ratification  of  the  Constitution  were 
few  in  number.  They  consist  only  of  three  :  first, 
that  which  declares  *'  that  the  judicial  power  of  the 
United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity  commenced  or  prosecuted 
•^eainst  one  of  the  United  States  by  citizens  of  an- 
v^tuer  state,  or  by  citizens  or  subjects  of  any  foreign 
-tate  ;"  second,  that  which  changed  the  mode  of  bal- 
loting for  President  and  Vice-president  by  the  elect- 
ors ;  and,  third,  an  amendment  ordaining  that,  *'  if  any 
r.itizen  of  the  United  States  shall  accept,  claim,  re- 
..:ve,  or  retain  any  title  of  nobility  or  honour;  or 
shall,  without  the  consent  of  Congress,  accept  or  re- 
tain any  present,  pension,  office,  or  emolument  of 


eONiTITUTIONAL    JURISPRUDENCE.  269 

any  kind  whatever,  from  any  emperor,  king,  prince. 
or  foreign  povver,  such  person  shall  cease  to  be  a 
citizen  of  the  United  States,  and  shall  be  incapable 
of  holding  any  office  of  trust  or  profit  under  them,  or 
either  of  them." 

The  previous  and  more  numerous  amendments 
were  proposed  by  some  of  the  states  as  conditions  o( 
their  accession  to  the  Constitution.  They  all  oper- 
ate as  general  restrictions  upon  the  powers  of  Con- 
gress, and  are,  for  the  most  part,  affirmative  either  ol 
the  inalienable  rights  of  individuals,  or  of  the  civil 
and  political  rights  and  privileges  substituted  in  their 
stead,  as  explained  in  our  review  of  the  fundamental 
principles  of  the  government ;  and  they  were  man- 
ifestly adopted  from  superabundant  caution,  inasmuch 
as  those  rights  were  already  sufficiently  guarded  by 
the  state  constitutions  and  bills  of  rights.  The  fol- 
lowing, however,  may  be  enumerated  as  exceptions, 
viz. : 

1st.  That  which  prohibits  Congress  from  making 
any  law  respecting  a  religious  establishment,  pro- 
hibiting the  free  exercise  of  religious  worship,  or 
abridging  the  freedom  of  speech  or  of  the  press. 

2d.  That  *'  the  enumeration  in  the  Constitution  of 
certain  rights  shall  not  be  construed  to  deny  or  dis- 
parage others  retained  by  the  people."     And, 

3d.  That  "  the  powers  not  delegated  to  the  Uni- 
ted States  by  the  Constitution,  nor  prohibited  by  it 
lo  the  states,  are  reserved  to  the  states  respectively, 
or  to  the  people." 

The  second  of  these  amendments  was  intended  to 
prevent  any  perverse  or  ingenious  misapplication  oi 
the  maxim  that  "  an  affirmation  in  particular  cases 
implies  a  negation  in  ail  others."  The  one  last  spe- 
cified is  merely  an  affirmation  of  a  necessary  rule  for 
the  interpretation  of  the  Constitution  ;  which,  being  an 


270  LECTURES   ON 

instrument  of  limited  and  enumerated  powers,  what  19 
not  conferred  by  it  is  withheld,  and  retained  by  the 
state  governments,  if  vested  in  them  by  their  constitu- 
tions, and  if  not  so  vested,  remains  with  the  people,  as 
a  part  of  their  residuary  sovereignty.  This  amend- 
ment, however,  does  not  confine  the  Federal  Govern- 
ment to  the  exercise  of  express  powers  ;  for  hnp/icd 
j)Owers  must  necessarily  have  been  admitted,  unless 
the  Constitution  had  descended  to  the  regulation  oi 
the  minutest  details  of  legislation.  It  is  a  general 
principle,  that  ail  bodies  politic  possess  all  the  pow- 
ers incident  to  a  corporate  capacity,  without  any  ex- 
press declaration  to  that  effect ;  and  one  of  those  de- 
fects of  the  Confederation  which  led  to  its  abolition, 
was  its  prohibiting  Congress  from  the  exercise  of 
any  power  "not  expressly  delegated." 

It  could  never,  therefore,  have  been  intended  by 
the  amendment  in  question  to  abridge  any  of  the 
powers  granted  under  the  new  Constitution,  wheth- 
er express  or  implied,  direct  or  incidental.  Its  man- 
ifest and  sole  design  was  to  exclude  any  interpreta- 
tion by  which  other  powers  should  be  assumed  be- 
yond those  granted.  All  the  powers  granted  by  the 
Constitution,  whether  express  or  implied,  direct  or 
incidental,  are  left  by  the  amendment  in  their  origi- 
nal state,  while  all  powers  "  not  delegated''^  (not  all 
powers  "  not  expressly  delegated")  and  not  prohibit- 
ed are  reserved. 

In  these,  and  all  the  other  restrictions  on  the  le- 
gislative powers  of  the  Union,  the  two  great  objects 
were  to  secure  the  rights  of  the  people^  and  to  preserve 
the  Federal  sy stein. 


CONSTITUTIONAL    JURISPRUDENCE.  271 


LECTURE  XI. 

OF    THE     CONSTITUTIONAL    RESTRICTIONS    UPON    THK 
POWERS    OF    THE    SEVERAL    STATES. 

The  fifth  class  of  provisions  in  favour  of  the  Fed- 
eral authority  consists  of  restrictions  on  the  powers 
of  the  several  states.  These  may  be  distinguished 
by  their  character  as  two  sorts  :  the  first  compre- 
hending those  limitations  which  are  absolute;  and 
the  second,  such  as  are  qualified. 

I.  The  former  prohibit  any  state  from  entering 
into  any  treaty  of  alliance  or  confederation ;  from 
granting  letters  of  marque  and  reprisal ;  from  coin- 
ing money,  emitting  bills  of  credit,  or  making  any- 
thing but  gold  or  silver  coin  a  tender  in  payment  of 
debts  ;  from  passing  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  con- 
tracts ;  and  from  granting  any  title  of  nobility. 

1^/,.  The  prohibition  against  treaties,  alliances, 
and  confederations  was  contained  in  the  articles  of 
the  former  union  of  the  states,  and  copied  in  the  new 
Constitution.  If  every  state  were  at  liberty  to  enter 
into  treaties,  alliances,  and  confederacies  with  for- 
eign states,  or  with  other  members  of  the  Union,  the 
power  confided  to  the  National  Government  in  re- 
gard to  the  former  would  be  rendered  nugatory, 
while  the  Constitution  itself  might  be  subverted  by 
the  exercise  of  such  a  power  among  the  states. 

The  prohibition  of  letters  of  marque  and  reprisal 
was  also  a  part  of  the  old  system,  and  adopted,  but 
with  some  extension,  in  the  new.  According  to  the 
former,  they  might  be  granted  by  the  states,  after  a 
declaration  of  war  by  Congress ;   under  the  latter, 


272  LECTURES    ON 

thoy  must  be  obtained,  as  well  during  the  war  as  pre- 
viously to  its  declaration,  from  the  General  Govern- 
ment. This  alteration  is  fully  justified  by  the  ad- 
vantages of  uniformity,  in  all  points  relating  to  for- 
eign powers  ;  and  by  the  necessity  of  an  immediate 
responsibility  to  the  nation,  in  all  matters  in  whicli 
the  nation  itself  is  responsible  to  others.  Moreover, 
were  it  otherwise,  it  would  be  in  the  power  of  a  sin- 
gle state  to  involve  the  whole  Union  in  war,  at  its 
pleasure ;  and  although  the  issuing  of  letters  of 
marque  is  not  always  designed  as  a  preliminary  or 
provocative  to  war,  yet,  in  its  essence,  it  is  a  meas- 
ure of  hostile  retaliation  for  unredressed  grievances, 
real  or  supposed,  and  is  most  generally  succeeded 
by  open  hostilities. 

2d.  The  prohibition  of  the  states  to  coin  money 
was  necessary  to  give  complete  effect  to  the  power 
of  the  Union  in  relation  to  the  current  coin,  and  arose 
from  a  consideration  of  the  danger  and  facility  of  cir- 
culating base  or  spurious  coins,  where  the  coins  are 
various  in  value  and  denomination,  and  issued  by 
several  independent  and  irresponsible  authorities 
Under  the  Confederation,  it  was  left  in  the  hands  of 
the  states  as  a  concurrent  right,  with  an  exception 
in  favour  of  the  exclusive  right  of  Congress  to  regu- 
late the  alloy  and  the  value.  In  this  particular,  these 
two  provisions  have  been  found  to  be  an  improve- 
ment on  the  old  ;  for  while  the  alloy  and  the  value  de- 
pended.on  the  General  Government,  a  right  of  coinage 
in  the  individual  states  could  have  no  other  effect 
than  to  multiply  expensive  mints,  and  diversify  the 
forms  and  weights  of  the  coins  in  circulation.  The 
latter  measure  was  found  to  defeat  the  purposes 
for  which  th(i  power  was  originally  submitti^d  to  the 
Federal  auihoriiy  ;  and  so  far  as  the  former  might 
prevent  the  easy  remittance  of  gold  and  silver  to  the 


ONSTITUTIONAL   JURISPRUDENCE.  27b 

central  mint  for  recoinage,  the  end  can  be  as  well 
attained  by  local  mints  established  by  the  General 
Government  in  particular  states.  But  the  general 
substitution  of  a  paper  medium  for  a  metallic  cur- 
rency obviates  the  objection  entirely,  and  gives,  there- 
fore, greater  importance  to  the  extension  of  the  pro- 
hibition to  "  hills  of  credit^ 

The  loss  which  this  country  had  sustained  be- 
tween the  war  of  the  Revolution  and  the  adoption 
of  the  Federal  Constitution,  from  the  fatal  effects  of 
paper  money  on  public  and  private  confidence,  on  the 
industry  and  morals  of  the  people,  the  national  repu- 
tation, and  the  character  of  Republicanism  itself, 
could  be  redeemed  in  no  other  way  than  by  the  vol- 
untary surrender  by  the  several  states  of  the  power 
which  had  been  rendered  the  instrument  of  such 
profligate  and  destructive  mischief.  In  addition  to 
these  considerations,  the  same  reasons  which  evince 
the  necessity  of  denying  to  the  individual  states  the 
power  of  regulating  the  coin,  apply  with  equal  force  to 
inhibit  them  from  substituting  a  paper  medium  in  it^ 
place.  Were  every  state  at  liberty  to  regulate  the 
value  of  its  metallic  currency,  there  would  be  as 
many  different  currencies  as  states  ;  and  thus  the 
commercial  intercourse  between  them  would  be  em 
barrassed  and  impeded  ;  retrospective  alterations  ol 
the  value  of  its  coin  might  be  made  by  any  state,  in 
fraud  not  only  of  its  own  citizens,  and  those  of  other 
states,  but  of  foreigners,  which  would  not  merely  in 
terrupt  the  harmony  among  the  states,  and  engender 
animosities  between  them,  but  discredit  and  com- 
promise the  Union  with  foreign  nations,  by  the  indis- 
cretion or  profligacy  of  a  single  state.  Nor  are  these 
mischiefs  less  incident  to  a  power  in  the  states  to  emit 
bills  of  credit  than  to  coin  money  ;  and  the  power  to 
make  anything  l)ut  gold  or  silver  coin  a  tender  in  pay 


274  LECTURES    ON 

ment  of  debts  is  withdrawn  from  the  states,  on  the 
same  principle  as  that  of  issuing  a  paper  currency. 

This  restriction  upon  the  power  of  the  states  has 
received  a  construction   of  the  utmost  importance, 
both  to  their  individual  rights  and  the  authority  of 
the  Federal  Government.     It  has  been  ruled  by  the 
Supreme  Court,  that  although  the  term  **  bills  of 
credit,"  in  its  enlarged,  and,  perhaps,  in  its  literal 
sense,  may  comprehend  any  instrument  by  which  a 
state  engages  to  pay  money  at  a  future  day,  thereby 
including  a  certificate  given  for  money  borrowed,  yet 
that  the  language  of  the  Constitution,  and  the  mis- 
chief intended  to  be  prevented,  equally  limit  its  in- 
terpretation.    The  word  "  emit,"  it  was  observed,  is 
never   employed   in   describing  those    contracts   by 
which  a  state  binds  itself  to  pay  money  at  a  future 
day,  for  services   actually  received,  or  money  bor 
rowed  for  immediate  use.     Nor  are  instruments  ex 
ecuted  for  such  purposes   denominated  in  common 
language  "  bills  of  credit."     To  emit  hills  of  credit 
conveys  to  the  mind  the  idea  of  issuing  paper,  re- 
deemable at  a  future  day,  in  anticipation  of  the  pub- 
lic resources,  and  intended  to  circulate  as  money.* 
This  is  the  sense,  indeed,  in  which  the  terms  have 
always   been  understood,  and   in  which  they  were 
interpreted  by  the  court.     The  Constitution,  more- 
over, considers  the   emission  of  bills  of  credit,  and 
the  enactment  of  tender  laws,  as  distinct  operations, 
which  may  be  separately  performed,  independently 
of  each  other.   '  Both  acts  are  forbidden  ;  and  to  af- 
firm, as  has  been  done  in  some  of  the  states,!  that 
bills  of  credit  may  be  emitted,  if  not  made  a  legal 
tender,  is,  in  effect,  to  expunge  that  distinct  and  in* 
(h'pondent  prohibition,  and  to  read  the  Constitution 

»  4  Peters,  431.  +  8  ibid.,  40, 


CONSTITUTIONAL    JURISPRUV-:x.CE.  275 

as  if  that  branch  of  the  clause  had  been  omitted. 
But  there  is  too  much  reason  to  fear  that  such  an 
expedient  has  since  been  resorted  to,  or,  rather,  that 
a  successful  attempt  has  been  made  to  elude  tbi? 
wholesome  restriction. 

The  Legislature  of  Kentucky,  in  the  year  1820, 
passed  an  act  establishing  a  bank,  and  constituting 
the  president  and  directors  a  corporation,  with  a  capi- 
tal consisting  of  all  moneys  paid  into  the  treasury  of 
the  state  for  the  sale  of  its  vacant  lands,  and  other 
property.  The  bank  was  authorized  to  receive  mon- 
ey on  deposite,  to  make  loans,  and  issue  promissory 
notes  ;  and  was  the  exclusive  property  of  the  state. 
In  relation  to  this  bank,  thus  constituted,  with  such 
a  capital,  and  so  owned,  it  was  held  that  its  notes 
thus  issued  v^ere  not  bills  of  credit  within  the  mean- 
ing of  the  Constitution.*  It  was  admitted,  indeed, 
that  to  constitute  a  hill  of  credit  within  the  purview 
of  the  prohibition,  it  must  be  issued  by  a  state, 
on  the  faith  of  a  state,  and  designed  to  circulate 
as  money ;  that  the  paper  which  it  issues  must  cir- 
culate on  the  credit  of  the  state,  and  be  so  received 
and  used  in  the  ordinary  business  of  life  ;  that  the 
persons  issuing  it  must  have  power  to  bind  the  state  ; 
they  must  act  as  agents,  and,  of  course,  not  incur  any 
personal  responsibility,  nor  impart  as  individuals  any 
credit  to  the  paper.  These  were  admitted  to  be  the 
leading  characteristics  of  a  bill  of  credit,  and  yet  the 
notes  issued  by  this  "  Bank  of  the  Commonwealth  of 
Kentucky" — for  such,  moreover,  was  its  title — were 
held  not  to  be  hills  of  credit  within  the  meaning  of 
the  Federal  Constitution.  Before  we  assent  to  this 
conclusion,  let  us  bring  the  question  to  a  test,  I  will 
not  say  of  common  sense,  but  of  the  character^^^jf^ 

*  11  Peters,  257. 


276  LECTURES    ON 

specified  by  the  court.  These  shall  serve  ?s  inter- 
rogatories, to  which  answers  shall  be  drawn  from  its 
own  statement  of  the  facts. 

1st.  Were  the  notes  of  this  bank  issued  by  the 
state  1 

Answer.  The  bank  was  established  by  the  state  : 
its  capital  consisted  of  the  funds  of  the  state,  and  it 
was  authorized  by  the  state  to  issue  its  notes. 

2d.  Did  its  paper  circulate  on  the  credit  of  the 
state  ? 

Ans.  Its  issues  were  founded  on  its  capital,  whict 
was  the  property  of  the  state. 

3J.  Had  the  persons  w^ho  issued  its  notes  author 
ty  to  bind  the  state  ? 

Ans,  The  bank  was  the  property  of  the  state,  wh - 
named  or  appointed  its  directors  in  the  act  of  incor  • 
poration. 

4/A.  Did  the  directors  or  officers  of  the  bank  ac* 
as  agents  of  the  state,  without  incurring  personal  re- 
sponsibility ? 

Ans.  Of  course.  There  was  no  other  stockholder 
than  the  state  ;  and  they  could  not  have  acted  on 
any  other  responsibility  to  the  public  than  that  of  the 
state,  as  they  were  not  made  personally  responsible 
as  principals  by  the  act  of  incorporation. 

bth.  Did  the  directors  or  officers  of  the  bank  im- 
part any  credit,  as  individuals,  to  the  notes  of  the 
bank? 

Ans,  No  other  than  is  imparted  by  the  signatures 
of  the  officers  of  every  other  bank.  It  is  to  the  cap- 
ital of  the  bank,  and  to  the  responsibility  of  the  stock- 
holders, that  the  public  look  for  security,  and  not  to 
the  persons  whose  oficial  signatures  are  affixed  to  its 
notes. 

If  there  be  any  "  other  matter  or  thing"  which  may 
be  put  by  way  of  general  interrogatory,  the  answer 


CONSTITUTIONAL    JURISPRUDENCE.  277 

is  obvious  :  *'  Qui  facit  per  allum,  facit  per  5c."  In 
short,  if  a  state  wisiies  to  evade  the  Coiistitiitiori  and 
emit  bills  of  credit,  it  has  merely  to  incorporate  its 
public  officers,  or  other  agents,  as  a  bank,  and  thus 
render  a  prohibition  intended  to  prevent  a  recurrence 
of  those  evils,  which  had  been  found  from  experience 
to  attend  the  practice,  a  dead  letter.* 

3d.  Bills  of  attainder,  ex  post  facto  laws,  and  laws 
impairing  the  obligation  of  contracts,  are  contrary  to 
the  first  principles  of  the  social  contract,  and  to  ev- 
ery principle  of  sound  legislation.  The  two  former 
are  expressly  prohibited  to  Congress  by  the  Federal 
Constitution,  and  to  some  of  the  state  legislatures,  by 
declarations  of  rights  prefixed  to  their  constitutions. 
The  framers  of  the  Federal  compact  were,  neverthe- 
less, admonished  by  their  own  experience  of  the  ne- 
cessity of  additional  bulwarks  in  favour  of  personal 
security  and  private  rights  ;  and  the  experience  of 
their  successors  has  shown  that,  in  imposing  these 
restrictions,  the  Convention  maintained  its  character 
for  strict  integrity,  high  moral  sense,  and  sound  prac- 
tical wisdom. 

Bills  of  attainder  are  such  special  acts  of  the  Le- 
gislature as  inflict  capital  punishment  upon  persons' 
whom  they  declare  to  be  guilty  of  high  offences,  with- 
out trial  or  conviction  in  the  ordinary  course  of  judi 
cial  proceedings.     They  have  generally  been  confi 
ned  to  cases  of  treason,  and  have  never  been  resort 
(  d  to  but  in  times  of  internal  commotion  and  arbitrary 
misgovernment.     If  the  bill  inflict  a  milder  punish- 
ment than  death,  it  is  called  a  bill  of  pains  and  pen- 
allies  ;  but,  in  the  sense  of  the  Constitution,  bills  of 

*  The  decision  in  this  case  was  made  after  the  death  of  Chief- 
justice  Marshall,  and  the  opinion  of  the  court  delivered  by  Mr 
Justice  M-Lean  ;  Mr.  Justice  Thompson  concurring,  and  Mr.  Ju: 
tice  Siorv  dissenting. 


278  LECTURES    ON 

Aitainder  include  bills  of  pains  and  penalties,  as  tht- 
former  may  affect  the  life  of  an  individual,  or  maj 
confiscate  his  property,  or  both. 

Ex  post  facto  laws  are  often  supposed  to  signif}) 
all  laws  having  a  retroactive  operation  ;  but  theii 
technical  meaning  is  confined  to  such  as  render  crim- 
inal an  act  done  before  the  law  was  passed,  which 
was  then  innocent ;  or  to  such  as  aggravate  the  of- 
fence, or  render  it  more  criminal  than  it  was  when 
committed ;  or  such  as  inflict  a  greater  punishment 
than  the  law  annexed  to  the  crime  when  perpetrated  ; 
or  such  as  alter  the  rules  of  evidence,  and  admit  differ- 
ent, or  less  testimony  than  was  required. at  the  time 
the  oflence  was  committed  to  convict  the  ofiender. 
With  more  comprehensive  brevity,  these  laws  have 
been  defined  by  Chief-justice  Marshall  as  "those 
which  render  an  act  punishable  in  a  manner  in  which 
it  was  not  punishable  when  committed  ;"  and  this 
definition  includes  both  laws  inflicting  personal  or 
pecuniary  penalties  for  acts  before  innocent,  and 
laws  passed  after  the  commission  of  an  unlawful  act, 
which  enhance  its  guilt  or  aggravate  its  punishment. 
4/^.  A  similar  restriction  with  regard  to  bills  of 
attainder  and  ex  post  facto  laws  is  imposed  by  tht. 
Constitution  on  Congress,  as  well  as  upon  the  state 
legislatures  ;  but  not  with  regard  to  laws  impairi?ig 
the  obligation  of  contracts,  which  are  also  retro^^pec- 
tive  in  their  operation,  and  equally  inconsistent  with 
sound  legislation,  and  the  fundamental  principles  of 
the  social  compact. 

The  reason  of  this  difference  is  obvious.  By  con- 
tracts, in  the  sense  of  the  Constitution,  we  are  to  un- 
derstand every  executed  agreement,  whether  between 
individuals,  or  between  individuals  and  a  state,  by 
which  a  right  is  vested  ;  and  also  every  executory 
agreement  which  confers  a  right  of  action,  or  creaies 


'CONSTITUTIONAL    JURISPRUDENCE.  279 

A  oinding  obligation  in  relation  to  subjects  of  a  valu- 
able nature,  which  may  be  asserted  in  a  court  of 
justice  ;  but  it  does  not  comprehend  the  political  re- 
lations between  a  government  and  its  citizens.  The 
])Ovver  possessed  by  a  State  Legislature  to  which 
everything  not  expressly  reserved  is  granted,  and  the 
temptations  to  abuse  that  power,  render  express  re- 
strictions, if  not  absolutely  ncjcessary,  at  least  prudent 
and  useful ;  but  the  National  Legislature  has  no  pow- 
er to  interfere  with  contracts,  except  where  it  is  ex- 
pressly given  to  it.  By  the  obligation  of  contracts,  in 
the  meaning  and  intendment  of  the  Constitution,  is 
understood  not  merely  the  moral,  but  the  legal  obliga- 
tion ;  and  in  this  sense  a  system  of  bankruptcy  im- 
pairs  the  obligation  of  contracts,  when  it  releases  the 
party  from  the  necessity  of  performing  them  ;  but 
Congress  is  expressly  invested  with  this  power  in 
regard  to  bankruptcies,  as  an  enumerated,  and  not  as 
iin  implied  power,  and  in  no  other  form  can  it  impair 
ihe  obligation  of  a  contract. 

This  prohibition  in  regard  to  the  states  extensive- 
ly and  deeply  affects  their  legislative  authority  ;  and 
there  is  no  part  of  the  Federal  Constitution  that  has 
given  rise  to  more  various  and  able  discussions,  or 
to  more  obstinate  and  protracted  litigation.  A  com- 
pact between  two  states,  or  a  grant  from  a  state 
(which  amounts  to  a  contract)  to  individuals,  is  as 
much  protected  by  it  as  a  grant  from  one  individual 
to  another,  and  the  state  is  as  effectually  inhibited 
from  impairing  its  own  contracts,  or  those  to  which 
it  is  a  party,  as  it  is  from  impairing  the  obligation  of 
a  contract  between  two  individuals.  The  clause 
under  consideration  was  first  brought  into  direct  ju- 
dicial discussion  by  an  act  of  the  Legislature  of 
Georgia^  passed  in  the  year  1795.  This  act  author- 
ized the  sale  of  a  large  tract  of  wild  land,  in  what 


280  Ll!:CTUIlES    ON 

was  called  the  Yazoo  country,  and  a  grant  was  made 
in  pursuance  of  the  law,  to  a  number  of  individuals, 
under  the  name  of  the  "  Georgia  Company."  But 
by  an  act  passed  the  next  year,  the  Legislature  de- 
clared its  previous  grant  to  be  null  and  void,  on  the 
ground  of  fraud  and  corruption  in  obtaining  it.  One 
of  the  questions  presented  to  the  Supreme  Court  of 
the  United  States  for  decision  arose  upon  a  sale  to 
a  third  person,  by  a  grantee  of  the  state  under  the 
first  act,  and  it  was  this  :  Whether  the  Legislature 
of  Georgia  had  the  constitutional  power  to  repeal  the 
former  law,  and  avoid  the  sale  made  under  its  author- 
ity. The  court  declared  that,  when  a  law  in  its  na- 
ture imports  a  contract,  and  absolute  rights  have  vest- 
ed under  it,  its  repeal  could  neither  divest  those 
rights,  nor  annihilate  or  impair  the  title  thus  acqui- 
red.* A  party  cannot  pronounce  his  own  deed  inva- 
lid, whatever  cause  may  be  assigned  to  impeach  it, 
although  that  party  be  the  Legislature  of  a  state.  It 
was  accordingly  declared  that  an  estate  held  un- 
der the  act  of  1795,  having  passed  into  the  hands  of 
a  bona  jide  purchaser  for  a  valuable  consideration, 
the  State  of  Georgia  was  disabled  by  the  Constitu- 
tion from  passing  any  law  by  which  that  estate  could 
be  legally  impaired  and  rendered  void. 

The  next  case  in  which  this  prohibition  was 
brought  in  review  was  from  the  State  of  New- Jer- 
sey ;  on  which  occasion  it  was  held  that,  where  a 
State  Legislature  declared  by  law  that  certain  lands 
'o  be  purchased  for  the  use  of  some  Indians  should 
not  be  subject  to  taxation,  such  act  amounted  to  a 
contract,  which  could  not  be  rescinded  by  a  subse- 
quent Legislature.!  In  this  case  the  (Colonial  Legis- 
lature, in  1758,  authorized  a  purchase  of  lands  foi 

♦  C  Cranch,  87.  t  7  Cranch.  101. 


CONSTITUTIONAL    JURISPRUDENCE.  281 

the  Delaware  Indians,  and  made  the  stipulation  men- 
tioned. The  Indians  occupied  the  land  in  pursuance 
of  the  law  until  the  year  1803,  when  it  was  sold  un- 
der the  authority  of  the  Legislature.  In  1804,  ihe 
Legislature  repealed  the  act  exempting  the  land  from 
taxation ;  but  the  act  of  1758  was  held  to  be  a  con- 
tract, and  that  of  1804  a  breach  of  it,  and  it  was  ac- 
cordingly declared  void,  under  the  Constitution  of 
the  United  States  :  thereby  at  once  confirming  the 
former  decision,  and  recognising  the  principle  allu- 
ded to  in  a  former  lecture,  that  a  change  of  government 
does  not  affect  the  previously-vested  rights  of  prop- 
erty. 

In  a  subsequent  case  from  the  State  of  Virginia, 
the  same  points  again  arose,  and  the  court  went  more 
largely  into  the  consideration  of  this  delicate  and  in- 
teresting constitutional  doctrine,  not  only  establishing 
the  last-mentioned  principle,  in  regard  to  the  efTect 
of  a  resolution  on  prior  contracts,  but  at  the  same 
time  declaring  that  a  legislative  grant,  competently 
made,  vested  an  indefeasible  and  irrevocable  title.* 
There  is,  indeed,  no  authority  which  can  support  on 
principle  the  contrary  position.  Nor  can  the  Legis- 
lature of  a  state  repeal  statutes  creating  private  cor- 
porations, or  confirming  to  them  property  acquired 
under  the  faith  of  previous  laws,  and  by  such  repeal 
vest  it  in  others,  without  the  consent  or  default  of 
the  corporators.  Such  a  provision  would  be  equally 
repugnant  to  the  letter  and  spirit  of  the  Constitution, 
and  to  the  principles  of  natural  justice.  But  the  pro- 
vision we  are  considering  has  never  been  understood 
to  embrace  any  other  contracts  than  those  relating  to 
property,  or  some  object  of  value,  capable  of  being 
Bsserted  in  a  court  of  justice. 

*  9  Cranch,  43. 
Y 


282  LECTURES    ON 

Where  the  legal  interest  in  literary  or  charitable 
institutions  is  vested  by  law  in  trustees,  in  order  to 
promote  the  objects  for  which  they  were  incorpora- 
ted, and  donations  made  to  them,  they  are  considered 
as  within  the  protection  of  the  Constitution  ;  and  it 
was  in  the  great  case  of  Dartmoulh  College  that  this 
inhibition  upon  the  states  received  the  most  elaborate 
discussion,  and  the  most  efficient  and  instructive  ap- 
plication.* It  was  there  decided  that  the  charter 
granted  by  the  British  crown  to  that  institution,  in 
1769,  was  a  conlract  within  the  meaning  of  the  Con- 
stitution, and  protected  by  the  clause  in  question.  It 
was  held  that  the  college  was  a  private  charitable  in- 
stitution, not  liable  to  legislative  control,  and  that  a 
law  of  New-Hampshire,  altering  the  charter  in  a 
material  point,  without  the  consent  of  the  corpora- 
tion, was  a  "  law  impairing  the  obligation"  of  the 
charter,  and  it  was,  consequently,  declared  to  be  un- 
constitutional and  void.  Chief-justice  Marshall,  in 
delivering  the  opinion  of  the  court,  observed  that 
"  Dartmouth  College  was  a  private  eleemosynary  in- 
stitution, endowed  with  a  capacity  to  take  and  hold 
property  for  objects  unconnected  with  government. 
Its  funds  were  bestowed  by  individuals  on  the  faith 
of  the  charter,  and  consisted  entirely  of  private  do- 
nations. The  corporation  was  not  invested  with  any 
portion  of  political  power,  nor  did  it,  in  fact,  partake 
in  any  degree  in  the  administration  of  civil  govern- 
ment. It  was  instituted  as  a  private  corporation  for 
general  charity ;  and  the  charter  was  a  contract  to 
which  the  donors,  the  trustees,  and  the  crov/n  were 
the  original  parties,  and  it  was  made  on  a  valuable 
consideration  for  the  security  and  disposition  of  prop- 
erty." 

*  4  Wheat..  518. 


CONSTITUTIONAL     JURISPRUDENCE.         283 

The  legal  interest  in  every  literary  and  charitable 
institution  is  vested  in  trustees,  to  be  asserted  by 
them,  and  they  claim  or  defend  in  behalf  of  the 
object  to  promote  which  the  corporation  was  cre- 
ated and  the  donations  made.  Contracts  of  thi.s 
kind  are  most  reasonably  considered  within  the  pur 
view  and  protection  of  the  Constitution.  The  one 
in  question  remained  unchanged  by  the  Revolution, 
and  the  duties  as  well  as  the  powers  of  the  former 
government  devolved  on  the  people  of  New-Hamp- 
shire. But  the  law  of  that  state  transferred  the 
whole  power  of  governing  the  college  from  the  trus- 
tees, under  the  charter,  to  the  executive  of  New- 
Hampshire  ;  and  the  will  of  the  state  was  thereby 
substituted  for  the  will  of  the  donors,  in  every  essen- 
tial operation  of  the  college.  The  charter  was  re- 
organized in  such  a  manner  as  to  convert  a  literary 
institution,  moulded  according  to  the  will  of  its  found- 
ers, into  a  machine  entirely  subservient  to  the  will 
of  the  state.  A  proceeding  thus  subversiv(^.  of  the 
contract  on  the  faith  of  which  the  donors  invested 
their  property  was,  consequently,  held  to  be  repug- 
nant to  the  Constitution.  This  celebrated  case,  it 
has  been  well  said,*  "  contains  one  of  the  most  full 
and  elaborate  expositions  of  the  constitutional  sanc- 
tity of  contracts  anywhere  to  be  met  with ;  and  has 
done  more  than  any  other  single  act  proceeding  from 
the  authority  of  the  United  States  to  throw  an  im- 
pregnable barrier  around  all  rights  and  franchises 
derived  from  the  grant  of  government,  and  to  give 
solidity  and  inviolability  to  the  literary,  charitable, 
and  commercial  institutions  of  the  country." 

In  another  case,  in  which  this  prohibitory  clause 
of  the  Federal  Constitution   came   again  under  dis- 

*  1  Kent's  (^om. 


284  LECTURES    ON 

oussion,  it  was  observed  by  the  court  that  the  objec' 
tion  to  a  law,  on  the  ground  of  its  impairing  the  vio- 
lation of  contracts,  did  not  depend  on  the  extent  of  the 
change  effected  hy  the  law;  any  deviation  from  the 
terms  of  the  contract,  by  accelerating  or  postponing 
the  period  of  performance,  which  the  latter  pre- 
scribes, imposing  conditions  not  expressed  in  it,  or 
dispensing  with  the  performance  of  those  which  are, 
however  minute  or  apparently  immaterial  or  partial 
in  their  effect  on  the  contract,  impairs  its  obligation. 
The  material  point  decided  on  this  occasion  was, 
that  a.  compact  between  tivo  states  was  a  contract 
within  the  constitutional  prohibition.* 

Another  case,  which  led  to  a  very  extensive  in- 
quiry into  the  operation  of  this  constitutional  restric- 
tion, arose  under  an  insolvent  act  of  New-York, 
passed  in  1811.  This  law  was  retrospective,  and 
discharged  the  debtor,  upon  his  single  petition  and 
the  surrender  of  his  property,  without  the  concur- 
rence of  any  creditor,  from  all  pre-existing  debts,  and 
from  all  liability  and  responsibility  by  reason  of 
them.  The  court  on  this  occasion  recognised  the 
doctrine  adverted  to  in  a  former  lecture,  that  until 
Congress  exercise  its  power  on  the  subject  of  bank- 
ruptcy, the  individual  states  may  pass  bankrupt  laws, 
provided  they  contain  no  provision  violating  the  obli- 
gation of  contracts.  It  was  admitted  that  the  states 
might  discharge  debtors  from  imprisonment,  because 
imprisonment  is  no  part  of  the  contract,  but  only  a 
means  for  coercing  its  performance.  It  was  also 
admitted  that  a  state  may  pass  statutes  of  limitations, 
as  they  are  termed,  for  these  also  relate  only  to  thf, 
remedy,  and  not  to  the  obligation  of  the  contract ;  and 
it  was  stated  that  the  insolvent  laws  of  far  the  greater 

*  8  Wheat.,  \. 


CONSTITUTIONAL    JURISPRUDENCE.  285 

number  of  states  only  discharged  the  person  of  the 
debtor,  and  left  the  obligation  to  pay  in  full  force. 
But  a  law  which  discharged  the  debtor  from  his 
contract,  and  released  him  without"  payment,  im- 
paired, because  it  entirely  discharged  the  obligation 
of  the  contract ;  for  it  is  to  be  observed  that  there  is 
an  obvious  distinction,  in  the  nature  of  things,  be- 
tween the  oUigalion  of  a  contract,  and  the  remedy  to 
enforce  it.  The  latter  may  be  modified  as  the  wis- 
dom of  the  Legislature  may  direct.  But  the  Consti- 
tution, intending  to  restore  and  preserve  completely 
the  public  credit  and  confidence,  established  as  a 
fundamental  principle  that  the  former  shall  be  invio- 
lable.* 

The  case  in  which  the  above  decision  was  made 
had  arisen  in  the  Federal  Courts,  and  the  contract 
existed  when  the  state  law  was  passed.  But  it  was 
afterward  held  that  there  was  no  difference  when 
the  suit  in  such  a  case  is  brought  in  a  court  of  the 
state  of  which  both  the  parties  were  citizens,  and  in 
which  the  contract  was  made  and  the  discharge  ob- 
tained, and  where  the  parties  continue  to  reside  un- 
til the  suit  be  brought.!  A  distinction,  however,  was 
taken  in  the  courts  of  New- York  and  Massachusetts 
between  a  contract  made  before  and  one  made  after 
the  passing  of  the  state  law.J  The  doctrine  they 
established  w^as  this,  that  an  insolvent  act  in  force 
when  the  contract  was  made  did  not,  in  the  sense 
of  the  Constitution,  impair  its  obligation,  because  the 
parties  to  every  contract  have  reference  to  the  exist- 
ing laws  of  the  country  where  it  is  made,  and  are 
presumed  to  make  their  contract  in  reference  to 
them.  This  distinction  was  supposed  to  be  consist- 
ent with  the  decision  of  the  Supreme  Court  of  the 

«•  4  Wheat.,  122  f  6  ibid.,  131. 

X  16  J.  R.,  233    V  J.  C.  R.,  297,    13  Mass.  Rep.,  1. 


286  LECTURES    ON 

United  States  ;  but  in  a  subsequent  case,  where  the 
discharge  was  under  an  insolvent  law  of  a  different 
state  from  that  in  which  the  contract  was  made,  the 
Supreme  Court  went  a  step  farther,  and  held  that  a 
discharge  under  such  a  law  existing  when  the  debt 
was  contracted,  was  equally  within  the  principle  be- 
fore established.* 

It  remained,  however,  to  be  settled  whether  a  state 
could  constitutionally  pass  an  insolvent  law  which 
should  effectually  discharge  the  debtor  from  a  debt 
contracted  after  the  passing  of  the  act,  and  within 
the  state  in  which  the  law  was  passed.  The  gen- 
eral language  of  the  court  on  the  last  occasion 
seemed  to  reach  even  this  case  ;  but  the  fiicts  on 
which  the  question  then  arose  did  not  cover  the 
whole  ground.  The  decision,  therefore,  was  not  au- 
thority to  the  extent  mentioned  ;  and  it  was  subse- 
quently ruled,  by  a  bare  majority  of  the  court,  and 
after  much  apparent  hesitation,  that  a  bankrupt  or 
insolvent  law  of  a  state,  discharging  both  the  person 
of  the  debtor  and  his  future  acquisitions  of  property, 
is  not  a  law  "  impairing  the  obligation  of  contracts," 
in  respect  to  debts  contracted  within  the  state  suhse- 
quently  to  its  enactment. \ 

The  venerable  Chief-justice  Marshall  was  among 
the  minority  of  the  court,  and  delivered  the  reasons 
for  their  dissent.  He  admitted  that  none  of  the  for- 
mer decisions  comprehended  the  question  then  pre- 
sented, and  that  it  was,  consequently,  an  open  one. 
He  also  admitted  that  there  was  an  essential  differ- 
ence in  principle  betwigen  laws  that  act  on  past  or 
future  contracts  ;  and  that,  while  those  of  the  former 
description  could  seldom  be  justified,  those  of  the  lat- 
ter were  proper  subjects  of  ordinary  legislative  dis- 

♦  4  Wheat..  209.  t  13  ibid..  213. 


CONSTITUTIONAL    JUIUSTRUDENCE.  287 

cretion.  A  constitutional  restriction,  therefore,  on 
the  power  to  pass  laws  of  the  one  class  might  very 
well  consist,  with  entire  legislative  freedom,  in  regard 
to  the  other.  Yet,  when  we  consider  the  nature  of 
the  Union  ;  that  it  was  intended  to  make  us  in  a  great 
measure  one  people,  as  to  commercial  objects  ;  that, 
so  far  as  respects  the  intercommunication  of  indi- 
viduals, the  lines  of  separation  between  states  are  in 
many  respects  obliterated,  it  would  be  matter  of  sur- 
prise if,  on  the  delicate  subject  of  contracts  actually 
formed,  the  interference  of  state  legislation  should 
be  greatly  abridged  or  entirely,  forbidden.  In  the 
nature  of  the  existing  provision,  then,  there  seems  to 
be  nothing  which  should  induce  us  to  adopt  the  lim- 
ited construction  which  had  been  given  in  that  case 
to  the  prohibitory  clause. 

The  former  part  of  the  section,  comprehending  the 
prohibition,  enumerates  the  cases  in  which  the  ac- 
tion of  the  state  legislatures  is  absolutely  and  entire- 
ly forbidden  ;  while  the  latter  part  specifies  those  in 
which  the  prohibitions  are  qualified.  The  former 
comprehends  two  classes  of  powers  :  those  of  the 
first  class  are  political  and  general  in  their  nature, 
consisting  in  the  exercise  of  sovereignty  without  af- 
fecting the  rights  of  individuals  ;  while  the  second 
class  comprehends  those  laws  which  operate  upon 
individuals,  and  includes,  among  others,  "  laws  im- 
pairing the  obligation  of  contracts."  In  all  the  cases 
embraced  in  both  classes,  whether  the  thing  prohib- 
ited be  the  exercise  of  mere  political  power  or  legis- 
lative action  on  individuals,  the  prohibition  is  com- 
plete and  total.  Legislation  of  every  discription  on 
those  subjects  is,  without  any  exception,  com])re- 
hended  and  forbidden.  A  state  is  as  entirely  pro- 
hibited from  passing  laws  impairing  the  obligation  of 
contracts  as  from  making  treaties  or  coining  money. 


288  LECTURES    ON 

So  much  of  the  prohibition  as  restrains  the  power  o 
the  state  to  punish  offenders  in  criminal  cases,  and 
inhibits  bills  of  attainder  and  ex  post  facto  laws,  is,  in 
its  very  terms,  confined  to  pre-existing  cases.  But 
that  part  of  the  clause  which  relates  to  the  civil 
transactions  of  individuals  is  expressed  in  more  gen- 
eral terms — in  terms  which  comprehend,  in  their  or- 
dinary acceptation,  cases  which  occur  after  as  well 
as  before  the  passing  of  the  act.  It  forbids  a  state 
to  make  anything  but  gold  or  silver  coin  a  tender  in 
payment  of  debts,  or  to  pass  any  law  impairing  the 
obligation  of  contracts.  These  prohibitions  relate  to 
kindred  subjects  ;  they  contemplate  legislative  inter- 
ference with  private  rights,  and  restrain  such  inter- 
ference. In  construing  that  part  of  the  clause  which 
respects  tender  laws,  a  distinction  has  never  been 
attempted  between  debts  existing  at  the  time  the  law 
may  be  passed  and  those  afterward  contracted.  The 
prohibition  in  that  case  is  total ;  and  yet  the  differ- 
ence in  principle  between  making  property  a  tender 
in  payment  of  debts  contracted  after  the  passage  of 
the  act,  and  discharging  those  debts  without  pay- 
ment or  by  a  surrender  of  property,  in  other  words, 
between  an  absolute  and  a  contingent  right  to  tender 
in  payment,  is  not  clearly  discernible.  Nor  is  the 
difference  in  language  so  obvious  as  to  denote  plain- 
ly a  difference  of  intention  in  the  framers  of  the 
Constitution.  The  same  train  of  reasoning  which 
would  confine  the  words  relative  to  contracts  to  those 
contracts  only  which  existed  at  the  passage  of  the 
law,  would  go  far  in  limiting  those  relative  to  a  ten- 
der in  payment  of  debts  to  such  as  previously  exist- 
ed ;  yet  the  distinction  between  these  and  such  as 
were  contracted  subsequently  to  the  law  seems  nev- 
er before  to  have  occurred  to  any  expourtde**  of  lh« 


CONSTITUTIONAL    JURISPRUDENCE.  289 

Constitution,  and  would   unquestionably  defeat  the 
object  of  the  clause. 

A  point  of  greater  difficulty,  and  that  upon  which 
the  decision  of  the  question  appears  to  have  turned, 
was  the  nature  of  the  original  obligation  of  the  con- 
tract made  after  the  passage  of  such  an  insolvent 
law  :  whether  it  were  unconditional  to  perform  the 
very  act  stipulated ;  or  whether  a  condition  were  im 
plied  that,  in  the  event  of  insolvency,  the  contract 
should  be  satisfied  by  a  surrender  of  property.  It 
was  admitted  on  all  hands  that  the  Constitution  re- 
fers to,  and  preserves  the  legal,  not  the  moral  obli- 
gation of  a  contract ;  because  obligations  purely 
moral  are  not  enforced  by  the  agency  of  human  laws  ; 
and  the  restraints  imposed  on  the  states  by  the  Con- 
stitution are  intended  for  objects  which,  if  not  re- 
strained, would  be  the  subject  of  state  legislation. 
The  principle  insisted  on  by  the  chief-justice  was, 
that  laws  act  upon  a  contract,  and  do  not  enter  into 
it  and  become  a  stipulation  of  the  parties.  "  Socie- 
ty," he  observed,  "  affords  a  remedy  for  breaches  of 
contract,  and  if  that  remedy  has  been  applied,  the 
claim  to  it  is  extinguished."  The  external  action  ot 
law  upon  contracts,  by  administering  the  remedy  for 
their  breach,  is  the  usual  exercise  of  legislative  pow- 
er ;  and  an  interference  with  those  contracts,  by  in- 
troducing into  them  conditions  not  agreed  to  by  the 
parties,  would  be  a  very  unusual  and  extraordinary 
exercise  of  the  power  of  legislation,  and  one  not^ 
certainly,  to  be  gratuitously  attributed  to  laws  which 
do  not  profess  to  claim  it. 

If  the  law  becomes  part  of  the  contract,  change  of 
place  will  not  expunge  the  condition.  A  contract 
made  in  New-York  would  be  the  same  in  any  other 
state  ;  and  would  still  retain  the  stipulation  original- 
ly  introduced  into  it — tbat  the  debtor  should  be  dis 
Z 


290  LECTURES    ON 

chA.^ed  by  the  surrender  of  his  estate.  It  cannot 
be  true  that  contracts  are  entered  into  in  contempla* 
lion  of  the  insolvency  of  parties  to  be  bound  by  them. 
They  are  framed  with  the  expectation  that  they  will 
be  literally  performed.  Insolvency,  undoubtedly,  is 
a  casualty  which  may  possibly  occur,  but  it  is  never 
expected.  In  the  ordinary  course  of  human  transac- 
tions, if  its  probability  be  even  suspected,  security  is 
taken  against  it.  But  when  it  comes  unlooked  for, 
it  would  be  entirely  contrary  to  reason  to  consider 
it  as  a  part  of  the  contract.  However,  therefore,  a 
law  may  act  upon  contracts,  it  does  not  enter  into 
them  and  become  a  part  of  them.  The  effect  of  such 
a  principle  would  be  a  mischievous  abridgment  of 
legislative  power  over  subjects  within  the  proper  ju- 
risdiction of  a  state,  by  arresting  its  power  to  repeal  or 
modify  such  laws  with  respect  to  existing  contracts. 
But  it  has  been  objected  that  "  a  contract,  being  a 
creature  of  civil  society,  derives  its  obligation  from 
the  law,  which,  although  it  may  not  enter  into  the 
agreement,  still  acts  externally  upon  it,  and  deter- 
mines how  far  the  principle  of  coercion  shall  be  ap- 
plied to  it;  and  this  rule  being  universally  under- 
stood, no  individual  can  justly  complain  of  its  appli- 
cation to  himself."  This  argument  was  illustrated 
by  reference  to  the  statutes  to  prevent  frauds,  which 
require  certain  contracts  to  be  reduced  to  writing,  in 
order  to  render  them  obligatory ;  to  those  against 
usury,  which  declare  an  usurious  contract  void  from 
its  origin  ;  and  to  the  statutes  of  limitations,  which 
enable  one  party  to  prevent  the  other  from  enforcing 
the  contract  between  them,  after  the  expiration  of  a 
certain  period  from  its  breach  or  non-performance. 
But  here  the  fallacy  lies  at  the  very  foundation  of 
the  argument,  as  it  assumes  that  the  contract  is  the 
mere  creature  of  civil  society,  and  derives  all  its  ob- 


JONSTITUTIONAL  JURISPRUDENCE.    291 

ligation  from  human  legislation  ;  that  it  is  not  the 

stipulation  that  the  individual  makes  which  binds 

him,  but  some  declaration  of  the  supreme  power  of 

the  body  politic  to  which  he   belongs  ;    and  that, 

though  the  original  declaration  to  this  effect  be  lost 

• 
xn  remote  antiquity,  yet  it  must  be  presumed  to  be 

the  origin  of  the  obligation  of  contracts.  It  is,  how- 
ever, an  objection  of  no  considerable  weight  against 
the  truth  of  this  position,  that  no  trace  exists  of  any 
such  enactment.  As  far  back  as  human  research 
extends,  we  find  the  judicial  power  administering 
remedies  to  violated  rights  or  broken  contracts,  and 
applying  those  remedies  on  the  idea  of  a  pre-exist- 
ing obligation  on  every  man  to  do  that  which  he  has 
promised  to  do  ;  that  the  breach  of  this  obligation  is 
an  injury  for  which  the  party  has  a  just  claim  for 
compensation ;  and  that  society  ought  to  afford  him 
a  remedy  for  that  injury.  We  find,  too,  allusions  to 
the  modes  of  acquiring  property  ;  but  from  the  earli- 
est time,  we  find  no  allusion  to  any  supposed  act  of 
the  governing  power  as  giving  obligation  to  contracts. 
On  the  contrary,  all  the  proceedings  respecting  them, 
of  which  we  know  anything,  support  the  notion  of. 
a  pre-existing  obligation,  which  human  laws  merely 
enforce. 

Upon  this  supposition,  that  the  obligation  of  the 
contract  is  derived  from  the  agreement  of  the  parties, 
let  us  proceed  to  inquire  how  far  laws  act  externally 
upon  contracts,  and  in  that  way  control  their  obliga- 
tion. It  was  not  denied  that  a  law  might  have  such 
an  effect  upon  subsequent  contracts  ;  nor  that  it  may 
be  capable  of  discharging  a  debtor,  under  the  circum^ 
stances  and  conditions  prescribed  in  the  statute, 
which  was  relied  on  in  the  case  referred  to.  But  as 
that  was  an  effect  neither  contemplated  nor  intended 
by  the  parties,  an  act  of  the  Legislature  can  only  have 


292  LECTURES    ON  ^ 

this  operation  when  it  has  the  full  force  of  law.  A 
law  may  determine  the  obligation  of  a  contract  on 
the  happening  of  a  contingency,  because  it  is  the 
law.  But  if  it  be  noi  the  law,  it  cannot  have  this 
effect ;  and  when  its  existence  or  force  as  law  is 
denied,  they  cannot  either  of  them  be  proved  by 
showing  Avhat  are  the  quaUties  of  a  law.  Law  has 
been  defined  to  be  "  a  rule  of  civil  conduct,  prescri- 
bed by  the  supreme  power  in  a  state."  In  our  sys- 
tem, the  Legislature  of  a  state  is  the  supreme  power 
in  all  cases  in  which  its  action  is  not  restrained  by 
the  state  constitution  or  the  Constitution  of  the  Uni- 
ted States.  Where  it  is  so  restrained,  the  state  Le- 
gislature ceases  to  be  the  supreme  power,  and  its 
acts  are  not  law.  It  was,  therefore,  begging  the 
question  to  say  that,  because  contracts  may  be  dis- 
charged by  a  law  previously  enacted,  it  was  dis- 
charged in  that  case  by  the  act  of  the  Legislature  set 
up  for  the  purpose :  for  the  question  returned.  Was 
that  act  LAW?  Was  it  consistent  with,  or  repug- 
nant to,  the  Constitution  of  the  United  States  ? 

It  was  readily  admitted  that  the  whole  subject  of 
contracts  was  under  the  control  of  society,  and  thai 
all  the  power  of  society  over  them  resides  in  the 
state  legislatures,  except  in  those  special  cases 
where  restraint  is  imposed  by  the  Federal  Constitu- 
tion. The  extent  of  the  restraint  on  the  power  to 
impair  the  obligation  of  contracts  cannot,  however, 
be  ascertained  by  showing  that  the  Legislature  may 
prescribe  the  circumstances  on  which  their  original 
validity  may  be  made  to  depend.  If  the  legislative 
will  were  that  certain  agreements  should  be  in  wri- 
ting ;  that  they  should  be  sealed,  and  attested  by  a 
given  number  of  witnesses  ;  that  they  should  be  re- 
corded, or  assume  any  prescribed  form  before  they 
became  obligatory,  all  these  are  regulations  which 


CONSTITUTIONAL    JURISPRUDENCE.         29^; 

society  may  rightfully  make  ;  and  they  do  not  come 
within  the  restriction  of  the  Constitution,  because 
they  do  not  impair  the  obligation  of  the  contract. 
The  obligation  must  exist  before  it  can  be  impaired  •, 
and  a  prohibition  to  impair  it  when  made,  does  not 
imply  an  inability  to  prescribe  those  conditions  which 
shall  create  its  obligation.  The  statutes  of  frauds 
which  have  been  enacted  in  the  several  states,  and 
which  are  acknow^ledged  to  flow  from  the  proper  ex 
ercise  of  state  sovereignty,  prescribe  regulations 
which  must  precede  the  obligation  of  the  contract, 
and,  consequently,  cannot  impair  it.  Acts  of  this 
description,  therefore,  are  most  clearly  not  within  the 
prohibition.  The  acts  against  usury  are  of  the  same 
character  :  they  declare  the  contract  to  be  void 
from  the  beginning,  and  deny  that  the  instrument 
ever  became  a  contract  ;  they  deny  it  all  original 
obligation,  and  that  it  cannot,  therefore,  impair  that 
which  never  came  into  existence.  Statutes  of  limit- 
ation approach  more  nearly  to  the  subject  under  con- 
sideration, but  can  never  be  identified  with  it :  they 
defeat  a  contract  once  obligatory,  but,  as  has  been 
before  ebserved,  they  relate  only  to  the  remedies  fur- 
nished to  enforce  the  contract,  and  their  language  is 
generally  confined  to  the  remedy  ;  they  do  not  pur- 
port to  dispense  with  the  performance  of  the  con- 
tract, but  proceed  upon  the  presumption  that  a  cer- 
tain length  of  time,  if  unexplained  by  circumstances, 
aflx)rds  reasonable  evidence  of  its  having  been  per- 
formed. In  prescribing  the  proofs  that  shall  be  re- 
ceived in  their  courts,  and  the  efifect  of  those  proofs, 
the  states  exercise  their  acknowledged  powers,  as 
they  also  do  in  regulating  the  remedies  and  modes 
of  proceeding  in  those  courts. 

It  was,  nevertheless,  insisted  that  the  right  to  reg- 
ulate the  remedy,  and  to  modify  the  obligation  of  the 


294  LECTURES    ON 

contract,  were  the  same  ;  that  obligation  and  remedy 
were  identical  and  synonymous.  But  the  answer 
given  to  this  proposition  seems  to  be  conclusive.  It 
was,  "  that  the  obligation  and  the  remedy  originate  at 
different  times."  The  obligation  to  perform  is  certain- 
ly coeval  with  the  contract  itself,  and  operates  ante- 
rior to  the  time  of  performance  ;  while  the  remedy 
acts  upon  a  broken  contract,  and  enforces  a  pre-ex 
isting  obligation.  The  right  to  contract  is  the  ac- 
knowledged attribute  of  a  free  agent,  and  he  may 
rightfully  coerce  performance  from  another  free  agent 
who  violates  his  faith.  Contracts  have,  consequent- 
ly, an  intrinsic  obligation.  When  men  enter  into  so- 
cieties, they  can  no  longer  exercise  this  original  and 
natural  right  of  coercion ;  it  is  surrendered  for  the 
means  of  coercion  afforded  by  society  But  the  right 
to  contract  is  not  surrendered  with  the  right  to  co- 
erce performance.  The  former  is  still  incidental  to 
that  degree  of  free  agency  which  the  laws  of  society 
leave  to  every  individual,  and  the  obligation  of  the 
contract  is  the  necessary  consequence  of  the  right 
to  make  it.  Laws  regulate  this  right ;  and  where  it 
is  not  regulated,  it  is  retained  in  its  original  extent. 
Obligation  and  remedy,  then,  are  not  identical ;  they 
originate  at  different  times,  and  are  derived  from  dif- 
ferent sources. 

But  it  was  alleged  that  "  the  power  of  the  state 
over  the  remedy  might  be  used  to  the  destruction  ol 
all  beneficial  results  from  the  right ;"  and  hence  il 
was  inferred  that  ^'  the  construction  which  maintains 
the  inviolability  of  the  obligation  must  be  extended 
to  the  power  of  regulating  the  remedy."  The  ditH- 
culty,  however,  which  this  view  of  the  subject  pre- 
sents, does  not  proceed  from  the  identity  or  connex- 
ion of  right  and  remedy,  but  from  the  existence  of 
distinct   governments,  ac*'ng    on  kindred  subjects 


CONSTITU'/IONAL    JURISPRUDENCE.  295 

The  Constitution  of  the  United  States  contemplates 
restraint  as  to  the  obligation  of  contracts,  not  as  to 
the  application  of  the  remedy.  If  this  restraint  affect 
a  power  which  the  Constitution  did  not  mean  to  touch, 
it  can  only  be  when  that  power  is  used  as  an  instru- 
ment of  hostility  to  invade  the  inviolability  of  con- 
tracts, which  is  placed  beyond  its  reach.  A  state 
may  use  many  of  its  acknowledged  powers  in  such 
a  manner  as  to  come  into  conflict  with  the  provisions 
of  the  Federal  Constitution  ;  thus  the  powers  over 
the  domestic  police,  and  the  power  to  regulate  its 
purely  internal  commerce,  may,  as  we  have  already 
seen,  be  so  exercised  as  to  interfere  with  the  regula- 
tion by  Congress  of  commerce  with  foreign  nations, 
or  among  the  states.  In  such  cases,  as  we  have  be- 
fore observed,  the  power  which  is  supreme  must  con- 
trol that  which  is  subordinate.  This  principle  nei- 
ther involves  self-contradiction,  nor  denies  the  exist- 
ence of  the  several  powers  in  the  respective  govern- 
ments. So,  if  a  state  shall  not  merely  modify  or  with- 
hold a  particular  remedy,  but  shall  apply  it  in  such  a 
manner  as  to  extinguish  the  obligation  without  per- 
formance of  a  contract,  it  would  be  an  abuse  of  pow- 
er which  could  scarcely  be  misunderstood  ;  but  it 
would  not  prove  that  remedy  could  not  be  regulated 
without  regulating  obligation. 

It  was  urged,  however,  as  a  conclusive  argument 
against  the  existence  of  a  distinct  line  of  division 
between  obligation  and  remedy,  that  "  the  same  pow- 
er which  can  withdraw  the  remedy  against  the  per- 
son of  the  debtor,  can  also  withdraw  that  against  his 
proper^?/,"  and  thus  effectually  defeat  the  obligation. 
"  The  Constitution,"  it  was  said,  "  did  not  deal  with 
form,  but  with  substance  ;  and  could  not  be  presumed, 
if  it  designed  to  protect  the  obligation  of  contracts 
from  state  legislation,  to  have  left  it  thus  obviously 


296  LECTURES    ON 

exposed  to  destruction."  The  answer  is,  that  the 
state  law  goes  farther,  and  annuls  the  obligation 
without  affording  the  remedy  which  satisfies  it ;  or, 
if  its  action  on  the  remedy  be  such  as  palpably  to 
impa'.r  the  obligation  of  the  contract,  the  very  case 
arises  which  was  supposed  to  be  prohibited.  If  the 
law  leaves  the  obligation  untouched,  but  withholds  the 
remedy,  or  affords  one  which  is  merely  nominal,  why, 
this  is  like  all  other  cases  of  misgovernment,  and 
leaves  the  debtor  still  liable  to  his  creditors,  should  he, 
or  his  property,  be  found  where  the  laws  afford  a  rem- 
edy. But  should  it  even  be  determined  that  such  tx 
law  was  a  successful  evasion  of  the  Constitution,  it 
would  not  follow  that  an  act  which  operates  directly 
on  the  contract  after  it  is  made  was  not  within  the 
restriction  imposed  on  the  states.  The  validity  of  a 
law  acting  immediately  upon  the  obligation  is  not 
proved  by  showing  that  the  Constitution  has  provided 
no  means  for  compelling  the  states  to  enfore  the  con- 
tract. The  prohibition  in  question  is,  therefore,  not 
incompatible  with  the  fair  elxercise  of  that  discretion 
which  the  state  legislatures  possess,  in  common  with 
all  governments,  to  regulate  the  remedies  aflbrded 
by  their  own  courts. 

It  is  impossible  to  look  back  to  the  history  of 
the  times  when  the  august  spectacle  was  exhibited 
of  a  whole  people  assembling  by  their  representa- 
tives in  order  to  unite  thirteen  independent  sovereign- 
ties under  one  government,  so  far  as  might  be  neces- 
sary for  the  purposes  of  union,  without  being  sensi- 
ble of  the  great  importance  which  was  attached  to 
this  article  of  the  Constitution.  The  power  of 
changing  the  relative  situations  of  debtor  and  credit- 
or, of  interfering  with  contracts,  a  power  which 
comes  home  to  the  business  of  every  man,  touches 
the  interest  of  all  classes,  and  controls  the  conduct 


CONSTITUTIONAL    JURISPRUDENCE.  297 

of  every  indiv^idiial  in  those  things  which  he  suppo- 
ses proper  for  his  own  exckisive  management,  had 
been  abused  to  such  an  excess  by  the  state  legisla- 
tures as  to  break  in  upon  the  ordinary  intercourse  of 
society,  and  destroy  all  confidence  between  man  and 
man.  The  mischief  had  become  so  great  and  so 
alarming,  as  not  only  to  impede  commercial  inter- 
course and  threaten  the  existence  of  public  credit, 
but  to  injure  the  morals  of  the  people,  and  destroy 
the  sanctity  of  private  faith.  To  guard  against  the 
recurrence  of  such  evils  was  an  object  of  deep  inter- 
est with  all  the  truly  wise  and  virtuous  men  in  the 
community,  as  well  as  in  the  Convention,  and  one  of 
the  most  important  benefits  anticipated  and  realized 
from  the  reform  of  the  government. 

The  imposition  of  restraints  on  state  legislation  in 
regard  to  this  delicate  subject  was  thought  necessa- 
ry by  all  who  took  an  honest,  enlightened,  and  com- 
prehensive view  of  the  situation  of  the  country,  and 
the  principle  in  question  obtained  an  early  admission 
into  the  various  schemes  of  government  submitted  to 
the  Convention.  In  framing  a  national  compact  in- 
tended to  be  perpetual,  the  presumption  is,  that  every 
important  principle  introduced  into  it  was  intended  to 
be  perpetual  also ;  and,  if  expressed  in  terms  which 
give  it  operation  in  all  future  time,  the  fair  inference 
is,  that  it  w^as  intended  so  to  operate.  But,  if  the 
construction  against  which  we  have  been  contending 
be  the  true  one,  the  Constitution  will  have  imposed 
a  restriction  in  words,  which  every  state  in  the  Union 
may  elude  at  pleasure.  The  obligation  of  contracts 
in  force  at  any  given  period  is  but  of  short  duration, 
and  if  the  inhibition  be  of  retrospective  laws  only,  a 
very  short  lapse  of  time  would  remove  every  subject 
on  which  the  act  is  forbidden  by  the  Constitution  to 
operate,  and  render  this  provision  so  far  useless. 


298  LECTURES    ON 

Instead  of  introducing  a  great  principle  prohibiting 
all  laws  of  this  obnoxious  character,  the  Constitution 
would  only  suspend  their  operation  for  a  season,  oi 
only  except  pre-existing  cStses  :  an  object  which 
would  hardly  have  been  deemed  of  sufficient  impor- 
tance to  have  found  a  place  in  that  instrument.  Such 
a  construction,  moreover,  would  change  the  charac- 
ter of  the  provision,  and  convert  an  inhibition  to  pass 
laws  impairing  the  obligation  of  contracts  into  an  in- 
hibition to  pass  retrospective  laws.  Had  this  been 
all  that  was  intended  by  the  Convention,  it  would 
probably  have  been  expressed  in  those  very  words  : 
the  prohibition  would  have  been  against  "  any  retro- 
spective law^^  instead  of  the  more  general  one  against 
"  any  law  impairing  the  obligation  of  contracts  ;"  or, 
if  the  intention  had  been  not  to  embrace  all  retro- 
spective laws,  but  those  only  which  related  to  con- 
tracts, the  State  Legislature  would  have  been  forbid- 
den to  pass  "  any  retrospective  law  impairing  the  oh- 
ligation  of  contracts^''  or  "  any  law  impairing  the 
obligation  of  contracts  previously  made.''''  For  if  the 
minds  of  the  Convention,  in  framing  this  prohibition, 
had  been  directed  not  generally  to  the  operation  of 
laws  upon  the  obligation  of  contracts,  but  particularly 
to  their  retrospective  operation,  it  is  scarcely  conceiv- 
able, notwithstanding  the  imperfection  of  human  lan- 
guage, that  some  words  would  not  have  been  used  to 
indicate  that  idea,  and  limit  their  intention.  In  in- 
struments prepared  on  great  consideration,  and  es- 
pecially in  those  granting  political  power,  general 
terms,  comprehending  a  whole  subject,  are  seldom 
employed  to  designate  a  particular  or  minute  portion 
of  it.  The  general  language  of  this  clause  is  such 
as  might  be  suggested  by  a  general  intent  to  prohibit 
state  legislation  on  the  subject  to  which  that  language 
is  applied — the  obligation  of  contracts — not  such  as 


CONSTITUTIONAL    JURISPRUDENCE.  29& 

would  be  suggested  by  a  particular  intent  to  prohibit 
retrospective  legislation.  Besides,  the  laws  Avhicn 
had  effected  all  the  mischief  the  Constitution,  intend- 
ed to  prevent,  were  prospective,  as  well  as  retro- 
spective in  their  operation.  They  embraced  future; 
contracts  as  well  as  those  previously  made  ;  from 
this  circumstance,  therefore,  there  is  less  reason  foi 
imputing  to  the  Convention  an  intention  not  manifest- 
ed by  their  language,  and  adopt  a  construction  which 
would  confine  a  restriction  designed  to  guard  againsi 
those  mischiefs  in  future  to  retrospective  legislation. 
Notwithstanding  all  this,  the  decision  of  the  ma- 
jority of  the  Supreme  Court,  in  the  case  which  gave 
rise  to  this  discussion,  was,  as  we  have  mentioned, 
in  favour  of  the  validity  of  a  discharge  under  a  state 
insolvent  law,  where  the  contract  was  made  between 
citizens  of  the  state  under  the  insolvent  system  of  which 
the  discharge  had  been  obtained,  and  in  whose  courts 
it  had  been  pleaded.  But  upon  the  question  whether 
a  discharge  of  a  debtor,  under  a  state  insolvent  law, 
would  be  valid  against  a  creditor  or  citizen  of  anoth- 
er state,  who  had  never  voluntarily  subjected  himselt 
to  the  state  authority,  otherwise  than  by  the  origin 
of  his  contract,  one  of  the  judges  in  the  majority 
agreed  with  those  in  the  minority  on  the  former  ques- 
tion, that  the  discharge  was  not  available  in  an.  ac- 
tion brought  by  a  citizen  of  another  state,  either  in 
the  courts  of  the  United  States,  or  of  any  other  state 
than  that  in  which  the  discharge  was  obtained.  So 
that  the  decision  in  favour  of  state  insolvent  laws 
impairing  the  obligation  of  subsequent  contracts,  is 
restricted  to  cases  in  which  the  contract  was  mad© 
within  the  state,  and  between  citizens  of  the  same 
state,  or  aliens,  but  is  sought  to  be  enforced  in  the 
courts  of  that  state  in  which  the  law  was  passed.* 
*  Tliat  a  state  law  may  be  retrospective  in  its  character,  an^ 


300  LECTURES     ON 

II.  The  other  limitations  on  the  state  powers  are 
those  in  which  the  prohibition  is  qualified,  and  re- 
strict a  state,  without  the  consent  of  Congress,  from 
laying  "  any  imposts  or  duties  on  imports  or  exports 
except  what  may  be  absolutely  necessary"  for  exe- 
cuting its  inspection  laws  ;  from  laying  any  duty  on 
tonnage  ;  keeeping  troops  or  ships  of  war  in  time 
of  peace  ;  entering  into  any  agreement  or  compact 
with  another  state,  or  with  a  foreign  power,  or  from 
engaging  in  war,  unless  actually  invaded,  or  in  such 
imminent  danger  of  invasion  as  will  not  admit  of 
delay. 

1st.  The  restraint  on  the  power  of  the  states  as 
to  imports  and  exports  is  enforced  by  all  the  argu- 
ments which  prove  the  necessity  of  submitting  the 
regulation  of  commerce  to  the  General  Government, 
p'rom  the  vast  inequality  between  the  different  states 

devest  private  rights,  without  violating  the  Federal  Constitution, 
unless  it  also  impairs  the  obligation  of  contracts,  was  affirmed, 
more  recently,  by  the  Supreme  Court  of  the  United  States,  in  a 
case  brought  up  on  appeal  from  the  highest  court  of  Massachusetts. 
The  Legislature  of  that  state  had  granted  to  Harvard  College  the 
liberty  and  power  of  disposing  of  a  ferry  from  Charlestown  to  Bos- 
ton, and  of  receiving  a  rent  for  it.  Afterward  the  Legislature  in- 
corporated a  company  to  erect  a  bridge  over  Charles  River,  at  the 
place  where  the  ferry  had  been  established,  the  company  paying 
annually  to  the  college  a  certain  sum  of  money.  The  charter  gave 
the  company  the  right  to  take  tolls  for  forty  years,  and  afterward 
extended  it  to  seventy.  Before  the  forty  years  expired,  the  Legis- 
lature authorized  the  erection  of  another  bridge,  so  near  the  first 
as  injuriously  to  affect  its  tolls.  The  proprietors  of  the  first  bridge 
applied  to  the  Massachusetts  Court  to  restrain  by  injunction  the 
construction  of  the  second  bridge ;  but  the  court  dismissed  the 
bill,  and  the  case  was  carried  by  appeal  to  the  Supreme  Court  of 
the  United  States,  on  the  ground  that  the  first  charter  was  a  con- 
tract, and  the  grant  of  the  second  a  violation  of  it.  The  decree  of 
the  Massachusetts  court  was  affirmed;  and  in  giving  its  opinion, 
the  Supreme  Court  observed,  that  "a  uniform  course  of  action,  in- 
volving the  right  to  the  exercise  of  an  important  power  by  the  state 
government  for  half  a  century,  and  this  almost  without  question 
was  not  satisfactory  evidence  that  the  power  was  rightfully  ex 
ercised." — Vide  \\  Peters's  Rep,,  257. 


CONSTITUTIONAL    JURISPRUDENCE.  301 

as  lo  commercial  advantages,  few  subjects  were 
viewed  with  deeper  interest,  or  excited  greater  irri 
tation,  than  the  manner  in  which  the  several  statesi 
exercised,  or  seemed  under  the  Confederation  dis 
posed  to  exercise,  the  power  of  laying  duties  on  im 
ports.  From  motives  which  were  thought  sufficieni 
by  the  Convention,  the  general  {jower  of  taxation 
indispensably  necessary  as  it  was,  and  jealous  ai 
the  states  were  of  any  encroachments  upon  it,  was 
so  far  abridged  as  to  forbid  their  touching  imports  oi 
exports,  with  the  single  exception  specified  in  the 
Constitution  ;  and  they  were  thus  restrained,  from 
a  general  conviction  that  the  interest  of  all  would  be 
promoted  by  placing  the  whole  subject  under  the  ex- 
clusive control  of  Congress. 

In  considering  the  power  of  Congress  to  regulate 
commerce,  I  referred  to  a  decision  of  the  Supreme 
Court,  declaring  unconstitutional  an  act  of  a  State 
Legislature  requiring  importers  of  foreign  goods,  and 
the  venders  of  the  same  at  wholesale,  to  obtain  a 
license  from  the  state,  and  pay  a  sum  of  money  for 
the  same  to  the  state  treasury.*  This  act  was  also 
declared  to  be  repugnant  to  the  prohibition  of  the 
states  from  laying  duties  on  exports  and  imports  with- 
out the  consent  of  Congress.  An  impost  or  duty  on 
imports  is  a  custom  or  tax  levied  upon  articles 
brought  into  the  country  for  sale  or  use  ;  and  is  most 
usually  secured  before  the  importer  is  allowed  to  ex- 
ercise his  right  of  ownership  over  them,  because 
evasions  of  the  revenue  laws  can  be  prevented  more 
certainly  by  executing  them  while  the  articles  are  in 
the  custody  of  the  government.  It  would  not,  how- 
ever, be  less  an  impost  on  the  articles  if  it  were  lev- 
ied on  them  after  they  were  landed.     The  policy, 

*   12  Wheaton,  419.  / 


^2  LECTURES    ON 

and  consequent  practice  of  levying  or  securing  the 
duty  before  or  on  entering  the  port,  does  not  limit  llie 
exercise  of  the  power  to  that  period  ;  and,  conse- 
quently, the  prohibition  on  the  states  is  not  limited 
Ko  that  state  of  circumstances,  unless  the  true  meaning 
of  the  clause  so  confines  it.  If  we  resort  either  to  tech- 
nical authority  or  to  common  usage  for  the  meaning  of 
the  term  "imports,"  we  find  it  signifies  "  the  things  im- 
ported," or  the  articles  themselves,  which  are  brought 
into  the  country.  It  is  not  in  its  literal  sense  confi- 
ned to  a  duty  levied  while  the  article  is  entering  the 
country,  but  extends  to  a  tax  levied  after  it  has  ac- 
tually entered  it.  Again,  if  we  look  to  the  objects 
of  the  prohibition,  we  find  that  there  is  no  difference, 
in  efl!ect,  between  the  power  to  prohibit  the  sale  of 
an  article  and  a  power  to  prohibit  its  introduction. 
The  one  is  a  necessary  consequence  of  the  other. 
No  goods  would  be  imported  if  none  could  be  sold ; 
nor  can  any  object  of  any  description  be  accomplish- 
ed with  equal  certainty  by  laying  a  duty  on  the 
thing  imported  in  the  hands  of  the  importer ;  and  it 
is  obvious  that  the  same  power  which  imposes  a 
light  duty  might  impose  one  amounting  to  a  prohi- 
bition. The  prohibition  on  the  states  to  lay  a  duty 
on  imports  may,  indeed,  come  in  conflict  with  their 
acknowledged  power  to  tax  persons  and  property 
within  their  jurisdiction ;  and  although  this  power, 
and  the  restriction  of  it,  are  easily  distinguishable 
v'hen  they  do  not  approach  each  other,  yet  they  may 
approach  so  nearly  as  to  perplex  us  in  marking  the 
distinction  between  them.  The  distinction,  never- 
theless, exists,  and  must  be  defined  as  the  cases  in 
which  it  exists  arise.  It  was  deemed  sufficient,  in 
the  case  referred  to,  to  say  generally,  that  when  the 
importer  has  so  dealt  with  the  thing  imported  that 
it  has  become  incorporated  arid  mixed  up  with  the 


CONSTITUTIONAL    JURISPRUDENCE.  303 

/nass  of  property  in  the  country,  it  Las,  perhaps,  lost 
its  distinctive  character  as  an  import,  and  become 
subject  to  the  taxing  power  of  the  state  ;  but  while 
it  continues  the  property  of  the  importer,  and  remains 
in  his  warehouse  in  the  original  form  or  package  in 
which  it  was  imported,  a  tax  upon  it  is  too  plainly  a 
duty  on  imports  to  escape  this  prohibition  of  the  Con- 
stitution. 

The  general  power  of  taxation  is  retained  by  the 
states,  without  being  abridged  by  the  grant  of  a  simi- 
lar power  to  the  Government  of  the  Union,  and  is  to 
be  concurrently  exercised  by  both  governments,  un- 
der their  respective  constitutions  ;  but,  from  the  par- 
amount authority  of  the  General  Government,  the 
states  are  restrained,  without  any  express  prohibition, 
from  any  exercise  of  their  taxing  power,  which,  in 
its  nature,  is  incompatible  with,  or  repugnant  to,  the 
constitutional  laws  of  the  Union.  As  they  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede, 
burden,  or  in  any  manner  to  control  the  operation  of 
constitutional  laws  enacted  by  Congress  to  carry 
into  execution  any  of  the  powers  vested  in  the  Fed 
eral  Government,  they  cannot  tax  certificates  issued 
by  it  for  money  borrowed  on  the  credit  of  the  United 
States,  nor  the  stock  of  a  bank  chartered  by  Con- 
gress ;  the  latter  is  an  instrument,  and  the  former  in- 
cidents of  a  power  essential  to  the  fiscal  operations 
of  the  Union. 

2d.  The  other  qualified  prohibitions  have  their 
origin  in  the  same  general  policy  which  absolutely 
forbids  any  state  from  entering  into  any  treaty,  alli- 
ance, or  confederation,  and  from  granting  letters  of 
marque  and  reprisal ;  and  they  are  supported  by  the 
same  reasoning  which  establishes  the  propriety  of 
confiding  everything  relative  to  the  power  of  decla- 
ring war  to  the  exclusive  direction  and  control  of  the 


304  LECTURES    ON 

General  Government.  Treaties  of  alliance,  for  pur- 
poses of  peace  or  war,  of  external  political  depend- 
ance,  or  general  commercial  privileges  ;  treaties  of 
confederation  for  mutual  government,  political  co- 
operation, or  the  exercise  of  political  sovereignty,  or 
for  conferring  internal  political  jurisdiction,  are  ab- 
solutely prohibited  to  the  states.  But  compacts  and 
agreements,  which  apply  to  the  mere  private  rights 
of  sovereignty,  such  as  questions  of  boundary  be- 
tween a  state  and  a  foreign  province,  or  another 
state  ;  interests  in  land  situate  within  their  respect- 
ive boundaries,  and  other  internal  regulations  for  the 
mutual  accommodation  of  states  bordering  on  each 
other,  may  be  entered  into  by  the  respective  states, 
with  the  consent  of  Congress.  A  total  interdiction 
of  such  agreements  or  contracts  might  have  been 
attended  vvith  permanent  inconvenience,  or  public 
injury  to  the  states  ;  and  the  consent  of  Congress  to 
their  being  entered  into  is  required  to  guard  against 
every  infringement  of  the  national  rights,  which 
might  be  involved  in  them. 

As  the  maintenance  of  an  army  and  navy  by  a 
state  in  time  of  peace  might  produce  jealousies  and 
alarm  in  neighbouring  states,  and  in  foreign  nations 
bordering  on  its  territory,  the  states  are  prohibited 
from  such  establishments,  unless  with  the  consent  of 
the  General  Government.  But  as  a  state  may  be  so 
situated  in  time  of  war  as  to  render  a  military  force 
necessary  to  resist  an  invasion,  of  which  the  danger 
may  be  too  imminent  to  admit  of  delay  in  organizing 
it,  the  states  have  a  right  to  raise  troops,  and  fit  out 
fleets  for  its  own  safety  in  time  of  war,  without  ob- 
taining the  consent  of  Congress. 


CONSTITUTIONAL    JURISPRUDENCE.  305 


LECTURE  Xll.  • 

ON  THE  PROVISIOJNS  CONTAINED  IN  THE  CONSTITU 
TION  FOR  GIVING  EFFICACY  TO  THE  FEDERAL 
I'OWERS. 

The  sixth,  and  last  class  of  powers  enumerated 
in  the  Constitution,  consists  of  certain  provisions 
by  which  efficiency  is  given  to  the  rest.  The 
first  of  these  is  the  power  "^o  make  all  laws  ne- 
cessary and  proper  for  carrying  the  foregoing  powers 
into  execution.^'* 

1.  It  was  remarked  by  the  authors  of ''  The  Fed- 
eralist," that  "  without  the  substance  of  this  pow- 
er, the  whole  Constitution  would  be  a  dead  let- 
ter j"  and,  as  few  parts  of  that  instrument  had 
been  assailed  with  more  intemperance,  they  just- 
ly inferred  that  ^'  it  was  the  form  only  of  the  pro- 
vision that  was  objected  to,  and  they  according- 
ly proceeded  to  consider"  whether  a  better  one 
could  have  been  substituted.  "  There  were  four 
other  methods,"  they  observe,  "which  the  Con- 
vention might  have  pursued  :  they  might  have 
copied  the  article  of  the  Confederation  which 
prohibited  the  exercise  of  any  power  not  express- 
ly delegated;  they  might  have  attempted  a  posi- 
tive enumeration  of  the  powers  comprehended 
under  the  general  terms  necessary  and  proper , 
they  might  have  attempted  a  negative  enumera- 
tion of  them,  by  specifying  the  powers  excepted 
from  the  general  definition ,  or  they  might  have 
been  altogether  silent  on  the  subject,  and  left 
these  necessary  and  proper  powers  to  construc- 
tion and  inference." 

A  A 


306  LECTURES    ON 

Had  the  first  method  been  adopted,  it  is  evi« 
dent  that  the  new  Congress,  like  their  predeces- 
sors, would  have  been  continually  exposed  to  the 
alternative,  either  of  construing  the  term  "  ex- 
pressly" with  so  much  rigour  as  to  disarm  the 
government  of  all  real  authority,  or  with  so  much 
latitude  as  altogether  to  destroy  the  force  of  the 
restriction.  It  would  be  easy  to  show,  were  it 
necessary,  that  no  important  power  delegated 
by  the  Articles  of  Confederation  was  or  could 
have  been  executed  by  Congress,  without  recur- 
ring, more  or  less,  to  the  doctrine  of  construc- 
tion or  implication.  As  the  powers  delegated 
under  the  new  system  were  more  extensive,  the 
government,  which  was  to  administer  it,  would 
have  found  itself  still  more  frequently  driven  to 
the  dilemma  of  doing  nothing,  or  violating  the 
Constitution,  by  exercising  powers  indispensa- 
bly necessary^  but  not  expressly  granted. 

Had  the  Convention  made  a  positive  enumera 
tion  of  the  powers  necessary  and  proper  for  car- 
rying the  other  powers  into  effect,  it  would  have 
involved  a  complete  digest  of  laws  on  every  sub- 
ject to  which  the  Constitution  relates;  accommo- 
dated, too,  not  only  to  the  existing  state  of  things, 
but  to  all  possible  changes  which  futurity  might 
produce.  Had  they  attempted  to  enumerate  the 
particular  powers  or  means  not  necessary  or 
proper  for  carrying  the  general  powers  into  exe 
cution,  the  undertaking  would  have  been  no  less 
chimerical,  and  would,  moreover,  have  been  lia 
ble  to  this  farther  objection,  that  every  defect 
ill  the  enumeration  would  have  been  equivalent 
to  a  positive  grant  of  authority.  If,  to  avoid 
this  consequence,  they  had  attempted  a  partial 
enumeration    of   exceptions,   and    described  thd 


CONSTITUTIONAL    JURISPRUDENCE.  301 

residue  by  the  general  terms  "  necessary  and 
Droper,"  the  enumeration  must  have  comprehend- 
ed oxily  a  [ew  of  the  excepted  cases,  and  those 
the  least  likely  to  be  assumed  or  tolerated  j  be- 
cause the  enumeration  would,  of  course,  have 
selected  such  as  would  have  been  least  necessary 
tnd  proper,  and,  therefore,  the  unnecessary  and 
improper  powers  included  in  the  remainder 
*rould  be  less  forcibly  assumed  than  if  no  par- 
ticular enumeration  had  been  made. 

Had  the  Constitution  been  silent  on  this  sub- 
•-^.ct,  there  can  be  no  doubt  that  all  the  particu- 
»Hr  powers  requisite,  as  means  of  executing  the 
(general  powers,  would  have  resulted  to  the  gov- 
ernment by  unavoidable  implication.  No  axiom 
is  more  clearly  established  in  law  or  reason,  than 
that,  wherever  an  end  is  required,  the  means  are 
authorized  ;  wherever  a  general  power  to  do  a 
thing  is  given,  every  particular  power  necessa- 
ry for  doing  it  is  included.  Had  this  last  meth- 
od, therefore,  been  pursued,  every  objection  urged 
against  this  part  of  the  Constitution  would  have 
remained,  in  all  its  plausibility,  and  the  real  in- 
convenience felt  of  not  removing  a  pretext  which 
might  be  used  on  critical  occasions  for  drawing 
in  question  the  essential  powers  of  the  Union. 
But,  with  the  view  of  quieting  the  excessive  jeal- 
ousy which  had  been  excited  by  this  provision, 
an  amendment  of  the  Constitution  was  adopted, 
which,  omitting  the  word  "  expressly"  in  the 
Articles  of  Confederation,  simply  declares  that 
the  powers  "not  delegated  to  the  United  States, 
nor  prohibited  to  the  states,  are  reserved  to  the 
states  or  to  the  people  5"  thus  leaving  the  ques- 
tion, whether  the  particular  power,  which  may 
become  the  subject  of  controversy,  has  been  del 


308  LECTURES    ON 

egated  to  the  one  government  or  the  other,  to 
depend  upon  a  fair  construction  of  the  whole  in- 
strument. 

The  first  occasion  which  called  for  an  inter- 
pretation of  this  part  of  the  Constitution,  arose 
during  the  first  Congress  assembled  under  its 
'.iihority.  General  Hamilton,  at  that  time  Sec- 
retary of  the  Treasury,  had  recommended  the 
institution  of  a  National  Bank,  as  of  primary  im- 
portance to  the  prosperous  administration  of  the 
finances,  and  of  the  greatest  utility  in  the  oper- 
ations connected  with  the  support  of  public  cred- 
•^  The  bill  introduced  into  the  House  of  Rep- 
resentatives for  that  purpose  was  opposed,  as 
unconstitutional.  It  was  contended  that  the  Fed- 
eral Government  was  limited  to  the  exercise  of 
its  enumerated  powers,  and  that  the  power  to 
incorporate  a  bank  was  not  one  of  them  5  that  if 
such  powder  was  vested  in  the  government,  that 
it  must  be  an  implied  power,  and  that  the  power 
given  to  Congress  to  pass  all  laws  necessary 
and  proper  to  execute  the  specified  powers  must 
be  limited  to  means  necessary  to  the  end,  and 
incident  to  the  nature  of  the  specified  power. 
On  the  other  side,  it  was  urged  that  incidental  as 
well  as  express  powers  necessarily  belong  to  eve- 
ry government ;  and  that  when  a  power  was  del- 
egated to  effect  particular  objects,  all  the  known 
and  usual  means  of  effecting  them  followed,  as 
incidental  to  it  5  and  it  was  on  this  ground  in- 
sisted that  a  bank  was  a  known  and  usual  instru- 
ment which  several  of  the  enumerated  powers 
of  the  government  required  for  their  due  execu- 
tion. 

After  the  bill  had  passed  both  houses  of  Con- 
gress^  the  question  touching  its  conformity  to 


CONSTITUTIONAL    JURISPRUDENCE.  309 

the  Constitution  was  agitated  with  equal  ability 
and  ardour  ia  the  executive  cabinet.  Mr.  Jeffer- 
son, the  Secretary  of  State,  and  Mr.  Edmund 
Randolph,  the  Attorney-general,  conceived  that 
Congress  had  transcended  its  powers  ;  but  the 
Secretary  of  the  Treasury  maintained  the  oppo- 
site opinion,  and  was  supported  by  General 
Knox,  the  Secretary  of  War.  it  was  argued 
against  the  validity  of  the  act,  that  "the  power 
to  incorporate  a  bank  was  not  among  the  enu- 
merated powers  j  and  to  take  a  single  step  be- 
yond the  boundaries  specially  drawn  around  the 
powers  of  Congress,  would  be  to  take  possession 
of  an  undefined  and  undefinable  field  of  power  ; 
that,  though  Congress  were  authorized  to  make 
all  laws  necessary  and  proper  for  carrying  into 
execution  the  enumerated  powers,  they  were 
confined  to  those  means  which  were  necessary, 
and  not  merely  convenient.  It  meant  those 
means  without  which  the  grant  of  the  power 
would  be  nugatory  5  and  if  such  a  latitude  of  con- 
struction were  allowed  as  to  give  to  Congress 
any  implied  powers  on  the  ground  of  conveni- 
ence, it  would  swallow  up  all  the  enumerated 
powers,  and  reduce  the  whole  list  to  one  phrase." 
To  this  it  was  replied,  that  "every  power  vest- 
ed in  a  government  was,  in  its  nature,  sovereign, 
and  gave  a  right  to  employ  all  the  means  fairly  ap- 
plicable to  the  attainment  of  the  end  of  the  pow- 
er, and  not  specially  precluded  by  specified  exce])- 
tions,  nor  contrary  to  the  essential  ends  of  politi- 
cal society  ;  and  though  the  government  of  the 
United  States  was  one  of  limited  and  specified 
powers,  it  was  sovereign  with  regard  to  its  proper 
objects  and  declared  purposes  and  trusts  j  that  it 
was  incident  to  sovereign  power  to  erect  corpora- 


310  ^  LECTURES    OIN 

l-ions,  and,  consequently,  it  was  incident  to  lh» 
government  of  the  United  States  to  erect  one  ir 
relation  to  the  objects  intrusted  to  its  manage 
ment ;  that  implied  powers  are  as  completely  dele 
gated  as  those  which  are  expressed,  and  the  pow- 
er of  erecting  a  corporation  may  as  well  be  im 
plied  as  any  other  instrument  or  means  of  carrying 
into  execution  any  of  the  specified  powers  j  that 
the  exercise  of  the  power  in  that  case  had  a  nat- 
ural relation  to  the  lawful  ends  of  the  government.^ 
and  it  was  incident  to  the  sovereign  power  to 
regulate  the  currency,  and  to  employ  all  the 
means  which  apply  with  the  best  advantage  to 
that  regulation  ;,  that  the  word  necessary  in  the 
Constitution  oiiglit  not  to  be  confined  to  those 
means  without  Avhich  the  grant  of  the  power 
would  be  nugatory  y  that  it  often  means  no  more 
than  needful ^reqmsite^usefnly  or  conducive  to  ^  and 
that  this  was  the  sense  in  w^hich  the  word  was 
used  in  the  Constitution.  The  relation  between 
the  measure  and  the  end  was  the  criterion  of 
constitutionality,  and  not  w^hether  there  was  a 
greater  or  less  degree  of  necessity  or  utility.  The 
infinite  variety,  extent,  and  complexity  of  national 
exigencies,  necessarily  required  great  latitude  of 
discretion  in  the  selection  and  application  of 
means  j  and  the  authority  intrusted  to  govern- 
ment  ought  and  must  be  exercised  on  principles 
of  liberal  construction." 

General  Washington  gave  to  these  arguments  a 
deliberate  and  profound  consideration,  which  ter- 
minated in  his  conviction  that  the  incorporation  of 
a  bank  was  a  measure  authorized  by  the  Constitu- 
tion. The  bill  for  that  purpose,  accordingly,  re- 
ceived his  approval,  and  became  a  law. 

The  same  question  came   before  the  Supreai«» 


CONSTITUTIONAL    JURISPRUDENCE.  311 

(/ourt  of  the  United  States,  in  1819,  in  reference 
to  the  then  existing  bank,  which  had  been  incor- 
porated in  1816,  and  upon  which  the  State  of 
Maryland  hadT  subsequently  imposed  a  tax  ;  and 
although  the  question  had  twice  been  settled,  so 
far  as  a  legislative  act  could  settle  it,  yet  it  was 
thought  worthy  of  a  renewed  discussion  in  the  ju- 
dicial department.  The  chief-justice,*  however, 
observed  "  that  it  could  hardly  be  considered  an 
open  one,  after  the  principle  had  been  so  early 
introduced  and  recognised  by  many  successive 
legislatures,  and  had  acted  upon  the  judiciary  as 
a  law  of  undoubted  obligation."  He,  neverthe- 
less, admitted  that  it  belonged  to  the  Supreme 
Court  alone  to  make  a  final  decision,  and  that 
the  question  involved  a  consideration  of  the  Con- 
stitution in  its  most  interesting  and  vital  parts. 

It  was,  moreover,  admitted  that  "  the  govern- 
ment of  the  United  States  was  one  of  enumerated 
powers  J  but,  though  limited  in  its  powers,  that  it 
was  suprevie  within  its  sphere  of  action."  There 
was  nothing,  however,  in  the  Constitution  which 
excluded  incidental  or  implied  powers.  The  Ar- 
ticles of  Confederation,  indeed,  gave  nothing  to 
the  United  States  but  what  was  expressly  grant- 
ed;  but  the  amendment,  to  the  new  Constitution 
had  dropped  the  word  "  expressly,"  and  left  the 
question  whether  a  particular  power  was  grant- 
ed to  depend,  as  we  have  seen,  on  a  fair  con- 
struction of  the  whole  instrument.  *'  No  Consti- 
tution," he  continued,  ''  can  contain  an  accurate 
detail  of  all  the  subdivisions  of  its  powers,  and  of 
all  the  means  by  which  they  may  be  carried  into 
execution.      Its  nature  required   that   only  the 

MarsnalV/       ^  OF  the    *'  ^r 

'VBPwSIT 


312  LECTURES    ON 

great  outlines  should  be  marked  and  its  impor- 
tant objects  designated,  and  all  the  minor  ingre- 
dients left  to  be  deduced  from  the  nature  of  those 
objects.  The  sword  and  the  purse,  all  the  ex- 
ternal relations,  and  no  inconsiderable  portion  o( 
the  industry  of  the  nation,  were  intrusted  to  the 
General  Government ;  and  a  government  intrust- 
ed with  such  ample  powers,  on  the  due  execu- 
•.ion  of  which  the  happiness  and  prosperity  of 
the  nation  vitally  depend,  must  also  be  intrust 
ed  with  ample  means  for  their  execution;  and, 
unless  the  words  imperiously  require  it,  we 
ought  not  to  adopt  a  construction  which  w^ould 
impute  to  the  framers  of  the  Constitution,  w^hen 
granting  great  powers  for  the  public  good,  the 
intention  of  impeding  their  exercise  by  withhold- 
ing a  choice  of  means." 

"  The  powers  given  to  the  government,"  he 
said,  "imply  the  ordinary  means  of  execution, 
and  the  government,  in  all  sound  reasoning  and 
fair  interpretation,  must  have  the  choice  of  the 
means  which  it  deems  the  most  convenient  and 
appropriate  to  the  execution  of  the  powder.  The 
power  of  creating  a  corporation,  though  apper* 
taining  to  sovereignty,  was  held  not  to  be  a  great, 
substantive,  and  independent  power,  but  merely 
a  means  by  which  other  objects  are  accomplish- 
ed ;  in  like  manner,  as  no  seminary  of  learning 
is  instituted  in  order  to  be  incorporated,  but  the 
corporate  charter  is  conferred  to  subserve  the 
purposes  of  education.  The  power  of  creating 
a  corporation,  indeed,  was  never  used  for  its  own 
sake,  but  always  for  the  purpose  of  effecting 
something  else.  It  was  nothing,  therefore,  but 
the  ordinary  means  of  attaining  some  public  and 
useful  end.      But  the  Constitution  had  not  left 


CONSTITUTIONAL    JURISPRUDENCE.         313 

the  right  of  Congress  to  employ  the  necessary 
means  for  the  execution  of  its  powers  to  general 
reasoning  :  it  was  expressly  authorized  to  em- 
ploy such  means  ;  and  '  necessary  means^  in  the 
sense  of  the  Constitution,  did  not  import  an  ab- 
solute physical  necessity  so  strong  that  one 
thing  could  not  exist  without  the  other,  but  the 
term  signified  any  means  calculated  to  produce 
the  end." 

"  The  word  necessary^'*  it  was  observed,  *'  ad- 
mitted of  all  degrees  of  comparison.  A  thing 
might  be  necessary^  or  very  necessary,  or  absolute- 
ly and  indispensably  necessary  ;  to  no  mind  would 
the  same  idea  be  conveyed  by  these  several 
phrases  j"  and  the  remark  was  well  illustrated 
by  a  reference  to  that  article  of  the  Constitution 
which  prohibits  a  state  from  laying  "  imposts  or 
duties  on  imports  or  exports,  except  what  may 
be  absolutely  necessary  iov  carrying  into  execution 
its  inspection  laws."  It  is  impossible  to  com- 
pare this  clause  with  that  under  consideration, 
without  feeling  a  conviction  that  the  Convention 
understood  itself  to  change  materially  the  mean- 
ing of  the  word  "  necessary,"  by  prefixing  to  it 
the  word  "  absolutely"  in  the  one  case,  and  to 
qualify  its  signification  by  dropping  it  in  the 
other. 

The  word  "  necessary,"  then,  like  many  oth- 
ers, is  used  in  various  senses;  and  in  fixing  its 
construction,  the  intention,  the  subject,  the  con- 
text, are  all  to  be  taken  into  view.  The  powers 
of  the  General  Government  were  given  for  the 
welfare  of  the  nation  ;  they  were  intended  to 
endure  for  ages,  and  to  be  adapted  to  the  various 
exigencies  of  human  affairs.  To  have  prescribed 
the    specific    means   by    which  the   government 


d  LECTURED    ON 

should,  in  all  future  time,. execute  its  powers, 
would  have  changed  entirely  the  character  of 
the  Constitution,  and  given  it  the  properties  of  a 
legal  code.  It  would  have  been  an  unwise  at- 
tempt to  provide  by  immutable  rules  for  cases 
which,  if  foreseen  at  all,  must  have  been  per- 
ceived indistinctly,  and  which  could  have  been 
better  provided  for  as  they  occurred.  To  have 
declared  that  the  best  means  should  not  be  used, 
but  those  only  without  which  the  power  given 
would  be  nugatory,  would  have  deprived  Con- 
gress of  the  capacity  to  avail  itself  of  experi- 
ence, or  to  exercise  its  reason  and  accommodate 
its  legislation  to  circumstances. 

If  the  end  be  legitimate,  and  within  the  scope 
of  the  Constitution,  all  means  which  are  appro- 
priate and  plainly  adapted  to  those  ends,  and 
which  are  not  prohibited,  are  la\vful  ;  and  a  cor- 
poration was  considered  as  a  means  not  less 
usual,  nor  of  higher  dignity,  nor  more  requiring 
a  particular  specification,  than  other  means.  A 
National  Bank  was  deemed  a  convenient,  useful, 
and  essential  instrument  in  the  prosecution  of 
the  fiscal  operations  of  the  government.  It  was 
early  an  appropriate  measure ;  and  while  the 
wourt  declared  it  to  be  within  its  power,  and  its 
duty  to  maintain  that  an  act  of  Congress  ex- 
ceeding its  constitutional  power  of  legislation 
was  not  the  law  of  the  land,  yet,  if  a  law  was 
not  prohibited  by  the  Constitution,  and  was  real- 
ly calculated  to  effect  an  object  intrusted  to  the 
government,  it  did  not  pretend  to  the  power  to  in- 
quire into  the  degree  of  its  necessity,  as  that 
would  be  passing  the  line  which  circumscribes 
the  judicial  power,  and  treading  on  legislative 
ground 


CONSTITUTIONAL  JURISPRUDENCE.    315 

The  court,  therefore,  decided  that  the  law 
creating  the  bank  was  made  in  pursuance  of  the 
Constitution,  and  that  the  branches  of  the  Na- 
tional Bank,  proceeding  from  the  same  stocky 
and  conducing  to  the  complete  accomplishment 
of  its  objects,  were  equally  consistent  with  the 
Constitution.*  It  was  afterward  led,  in  some 
degree,  to  review  this  decision,  and,  in  a  subse- 
quent case,  admitted  that  Congress  could  not 
create  a  corporation  for  its  own  sake  or  for  pri-^ 
vate  purposes. f  It  was  observed  on  this  occa- 
sion, that  the  opinion  in  the  former  case  was 
founded  on  and  sustained  by  the  idea  that  the 
Bank  was  an  instrument  which  was  "  necessary 
and  proper  for  carrying  into  effect  the  powers" 
vested  in  the  government.  It  was  created  for 
national  purposes  only,  though  it  was  undoubt- 
edly capable  of  transacting  private  as  well  as 
public  business  5  and  while  it  was  the  great  in- 
strument by  which  the  fiscal  operations  of  the 
government  were  effected,  it  was  also  engaged 
in  trading  with  individuals  for  its  own  advan- 
tage It  could  not,  en  any  rational  calculation, 
effect  its  object  unless  it  were  endowed  with  the 
faculty  of  dealing  in  money,  which,  indeed,  was 
necessary  to  render  the  Bank  competent  to  ful- 
fil the  purposes  of  the  government,  and  was, 
therefore,  constitutionally  and  rightfully  ingraft- 
ed on  the  institution. 

II.  The  next  provis'on  for  giving  effect  to  the 
powers  of  the  Federal  Constitution  is  that  re- 
quiring the  senators  and  representatives  in  Con- 
gre-'sSj  and  the  members  of  the  state  legislatures,  ana 
all  executive  and  judicial  officers^  both  of  the  Unitea 

^  4  Wheat.,  316.  +  9  lb.,  860. 


316  LECTURES    ON 

States  and  of  the  several  states^  tc  he  hound  by  oath 
or  affirmation  to  support  the  Constitution  of  the 
United  States. 

The  election  of  the  President  and  Senate  de- 
pends, in  all  cases,  on  the  legislatures  of  the  sev- 
eral states  ;  and  the  election  of  members  of  the 
House  of  Representatives  depended  in  the  first 
instance,  and  still,  in  fact,  depends  on  the  same 
authority,  and  will  probably  always  be  conducted 
by  the  officers,  and  according  to  the  laws  of  the 
states.     In  order,  therefore,  to  ensure  the  stabil- 
ity, and,  as  far  as  possible,  the  perpetuity  of  the 
Federal  Government,  it  was  necessary  to  provide 
a  sanction  similar  to  that  relied  on  for  the  con 
tinuance  of  the  state  governments,  and  to  ot 
tain,  by  an  appeal  to  the  consciences  of  individ 
uals,  an  equal  security  in  both  cases.     This  de- 
pendance  on  the  action  of  the  state  governments 
for  the  organization  of  the  executive  and  legis- 
lative branches  of  the  National  Government,  and 
especially  for  the  appointment  of  electors  of  Pres- 
ident   and    Vice-president,  and   the   election  of 
senators,  has  been  used  as  an  argument  in  sup- 
port of  the  right  of  a  state,  in  virtue  of  its  sov- 
ereign power,  to  secede  from  the  Union.     But  were 
it  even  true  that  the  legislative  powers  of  the 
Union  would  be  suspended  if  all  the  states,  or  a 
majority  of  them,  were  to  refuse   to  elect  sena- 
tors, yet,  if  any  one  state  should  refuse,  Congress 
would  not,  on  that  account,  be  the  less  capable 
of  performing  all  its  functions.     The  same  rea- 
soning would  apply  to  any  number  of  states  less 
than  a  majority  of  the  whole  ;  and  the  argument 
founded  on  this  delinquency  proves  rather  the 
subordination  of  the  parts  to  the  whole  than  the 
complete  independence  of  any  one  of  them.    The 


CONSTITUTIONAL    J  UllISPllUDl£ISCE.  317 

tramers  of  the  Constitution  were  unable  to  make 
any  provision  whicii  siiould  protect  it  against  a 
general  combination  of  the  states  or  of  the  peo- 
ple for  itS'  destruction,  and,  conscious  of  this 
inability,  they  did  not  make  the  attempt.  But 
they  were  able  to  provide  against  the  operation 
of  measures  adopted  in  any  one  state,  the  ten- 
dency of  which  might  be  to  arrest  the  execution 
of  the  laws  of  the  Union  ;  and  this  they  have  done. 
To  this  it  may  be  added,  that  they  provided 
against  a  dissolution  of  the  Union,  and  against  any 
direct  or  indirect  attempts  on  the  part  of  a  state  to 
withdraw  from  the  Union,  not  only  by  this  provis- 
ion requiring  all  officers,  civil  and  military,  of  the 
state  governments  to  take  an  oath  to  support  the 
Federal  Constitution,  but  by  creating  distinct  ex- 
ecutive and  judicial  departments,  and  by  adopt- 
ing various  other  provisions,  operating  immedi- 
ately and  individually  upon  the  people  of  the 
several  states.  Thus  the  Constitution  exacts  no 
pledge  from  the  states  to  maintain  its  inviolability, 
but  makes  its  preservation  depend  on  individuuL 
obligation  and  duty.  It  permits  no  man  to  sit  in 
the  Legislature  of  a  state  who  is  not  first  sworn 
to  support  the  Constitution  of  the  United  States 
From  the  obligation  of  this  oath  no  state  power 
can  discharge  them.  All  the  members  of  all  the 
state  legislatures  are  as  religiously  bound  to  sup- 
port the  Federal  Constitution  as  they  are  to  sup- 
port those  of  their  own^ate  constitutions,  and  as 
solemnly  sworn  to  do  so  as  the  members  of  Con- 
gress. No  member  of  a  state  legislature  can  re- 
fuse to  proceed  at  the  appointed  time  to  elect  sen- 
ators in  Congress,  or  to  provide  for  the  choice  of 
electors  of  President  and  Vice-president,  any  . 
more  than  the  members  o^the  Senate  of  the  Uni« 


318  LECTURES    ON 

ted  States  can  refuse,  when  the  appointed  time 
arrives,  to  meet  the  members  of  the  other  house 
to  witness  the  counting  of  the  votes  given  by 
the  electors  for  those  officers,  and  ascertain  who 
are  chosen.  In  either  case,  the  duty  binds  with 
equal  strength  the  conscience  of  the  individual, 
and  is  imposed  on  every  member  by  an  oath  in 
the  same  words.  It  cannot,  therefore,  be  a  mat- 
ter of  discretion  with  the  states  whether  they 
will  continue  the  government  or  break  it  up,  by 
refusing  to  elect  senators  and  appoint  electors. 
Nor  can  the  members  of  their  legislatures  neg- 
lect or  evade  those  duties,  Avhen  the  times  arrive 
for  their  performance,  without  such  a  violation 
of  their  oaths  and  duties  as  would  destroy  any 
other  government. 

III.  Among  the  provisions  for  giving  efficacy 
to  the  Federal  legislative  powers  may  be  inclu- 
ded those  specially  vested  in  the  executive  and 
judicial  departments,  and  especially  the  provis- 
ion extending  the  jurisdiction  of. the  Federal 
Courts  to  all  cases  arising  under  the  Constitution 
of  the  United  States.  But  these  powers  have  al* 
ready  been  subjected  to  particular  examination 
in  our  review  of  the  structure  and  organizatioii 
of  the  government,  and  do  not,  perhaps,  require 
any  farther  elucidation.  It  may,  however,  be  as 
well  here  to  observe,  that  the  provision  last  spe- 
cified in  effisct  creates  in  the  Supreme  Court  of 
the  United  States  a  co]M#dn  arbiter  in  all  cases 
of  collision  between  the  power  and  authority  of 
the  Union  and  of  the  several  states.  Such  collis- 
ions, we  have  seen,  have  already  taken  place,  in 
times,  too,  of  no  extraordinary  commotion,  and 
have  hitherto  been  happily  adjusted.  "  But  a 
constitution,"  said  its  great  judicial  oracle,  ^- i» 


CONSTITUTIONAL    JURISPRUDENCE.  31/ 

framed  for  ages  to  come,  and  designed  to  ap 
proach  immortality  as  nearly  as  human  institu 
tions  can  attain  to  it.  Its  course  cannot  always 
be  tranqUii:  experience  as  well  as  reason  teach 
es  us  that  it  is  exposed  to  storms  and  tempests.^' 
The  same  lesson  had  been  taught  to  its  frame'-s 
under  the  Confederation,  and  had  confirmer^  ^he 
suggestions  of  their  own  experience,  and  Jidu- 
ced  them  to  devise  a  new  form  of  p^ovprranent 
for  themselves  and  their  posterity.  They  ac- 
cordingly provided  it,  as  far  as  its  nature  would 
permit,  with  the  means  of  self-preservation  from 
the  perils  it  was  destined  to  en^o'irter.  They 
well  understood  that  no  governp^e'it  should  be 
so  defective  in  its  organization  f\s  not  to  contain 
within  itself  the  means  of  securing  the  execution 
of  its  own  laws  against  othc*  fkmgers  than  those 
of  ordinary  occurrence.  They  were  aware  that 
courts  of  justice  were  Ui'i  means  most  usually 
employed ;  and  under  the  full  pressure  of  the 
evils  which  had  arisen  from  the  want  of  such  a 
power  under  the  Confederation,  they  created  in 
the  new  system  a  distinct  and  independent  judi- 
cial department ;  they  conferred  on  it  the  power 
of  construing  the  Constitution  and  laws  of  the 
Union,  in  the  last  resort,  in  all  cases,  and  of  pre- 
serving them  from  all  violation  from  any  quar- 
ter, so  far  as  judicial  decisions  could  preserve 
them  ;  and  they  conferred  on  the  chief  executive 
magistrate  the  powers  necessary  to  carry  into  ef- 
fect the  judgments  and  decrees  of  the  courts,  ei- 
ther directly  in  the  Constitution  itself,  or  indi- 
rectly, by  vesting  in  the  legislative  department 
authority  to  do  so. 

IV.  The  next  provision  for  giving  eflect  to  the 
powers  of  the  General  Government  is  the  decla- 


320  LECTURES    ON 

ration  that  the  "  Constitution^  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance 
thereof  a?id  all  treaties  made^  or  which  shall  be  made^ 
under  the  authority  of  the  United  States^  shall  be  the 
supreme  law  of  the  land ;  and  the  judges  in  every 
state  shall  be  bound  thereby^  anything  in  the  Consti- 
tat  ion  and  laws  of  any  state  to  the  contrary  notwith- 
sf  a  tiding  y 

Without  this  provision  the  Constitution  would 
have  been  evidently  and  radically  defective.  To 
be  fully  sensible  of  this,  we  need  only  suppose, 
with  the  authors  of  "  The  Federalist,"  that  the 
supremacy  of  the  state  constitutions  had  been 
left  complete  by  a  saving  clause  in  their  favour. 
In  the  first  place,  as  those  constitutions  invested 
the  state  legislatures  with  absolute  sovereignty 
in  all  cases,  not  excepted  by  the  Articles  of  Con- 
federation,  all  the  authorities  contained  in  the 
present  Constitution,  so  far  as  they  exceed  those 
enumerated  in  the  Confederation,  would  have 
been  annulled,  and  the  new  Congress  would  have 
been  reduced  to  the  same  impotent  condition  as 
their  predecessors,  which  it  was  the  avowed  and 
leading  design  of  the  Convention  in  this  particu- 
lar to  amend.  In  the  next  place,  as  the  consti- 
tutions of  some  of  the  states  did  not  expressly 
and  fully  recognise  the  powers  even  of  the  for- 
mer confederacy,  an  express  saving  of  such  con- 
stitutions would  in  those  states  have  brought  in 
question  every  power  contained  in  the  new  Con- 
stitution. In  the  third  place,  as  the  constitutions 
of  the  states  differ  much  from  each  other,  it  might 
have  happened  that  a  treaty,  or  national  law  of 
great  importance  to  the  states,  would  interfere 
with  some,  and  not  with  others,  of  the  state  con- 
stitutions, and  would,  consequently,  have   been 


CONyTlTUTlONAL  JURISPRUDENCE.     321 

ralid  in  some  states,  and  not  in  others.  In  the 
last  place,  there  would  have  been  exhibited  a 
system  (such  as  some  modern  theorists  and  po- 
litical visionaries  have  conceived  the  Federal 
Constitution  to  be),  founded  on  an  inversion  of 
the  fundamental  principles  of  all  government,  in 
which  the  authority  of  the  whole  society  would 
be  subordinate  to  that  of  the  parts,  the  head  un- 
der the  direction  of  each  of  the  members. 

But  the  provision  in  question  marks  the  char- 
acteristic distinctions  between  the  Government  of 
the  Union  and  the  governments  of  the  states  ;  and 
when  the  Constitution  or  laws  of  a  state  have  been 
deemed  repugnant  to,  or  incompatible  with,  the 
Federal  Constitution,  with  laws  made  in  pursuance 
of  it,  or  with  treaties  negotiated  under  its  author- 
ity, the  validity  of  the  former  has  been  inquired 
into  and  decided  upon  in  a  variety  of  cases  j  and 
in  every  instance  where  the  repugnance  existed, 
such  state  constitutions  or  laws,  or  such  parts  of 
them  as  were  incompatible  with  the  former,  have 
been,  as  we  have  seen,  judicially  abrogated  and 
annulled.  In  the  important  case  of  the  Bank  of 
the  United  States,  referred  to  in  the  last  lecture,* 
it  was  declared  that  the  law  of  Maryland  impo- 
sing a  tax  on  the  Bank  was  unconstitutional  and 
void,  on  the  ground  that  the  state  governments 
have  no  right  to  tax  any  of  the  constitutional 
means  employed  by  the  Government  of  the  Union 
to  execute  its  constitutional  powers  5  nor,  by  tax- 
ation or  otherwise,  to  retard,  impede,  burden,  or 
in  any  manner  control  the  operation  of  constitu- 
tional laws  enacted  by  Congress,  to  carry  into 
effect  the  powers  vested  in  the  National  Govern- 
ment. 

*  4  Wheaton,  316.  • 

B  B 


322  LECTUltES    ON 

It  was  contended,  on  that  occasion,  v>rs  Vi^half 
of  the  state  authority,  that  the  powers  of  the  Gen- 
eral Government  were  delegated  by  the  state 
governments,  and  that  the  Federal  authority  mu?t 
be  exercised  in  subordination  to  the  states,  who 
alone  possessed  supreme  dominion.  But  the  im- 
possibility of  sustaining  such  a  proposition  was 
fully  and  clearly  demonstrated.  It  was  admit* 
ted,  indeed,  that  the  Convention  that  framed  the 
Constitution  was  elected  by  the  state  legisla- 
tures ;  but  that  instrument,  when  it  came  from  the 
hands  of  the  Convention,  was  a  mere  proposal, 
without  actual  obligation,  or  any  pretension  to  it. 
It  was  reported  to  the  then  existing  Congress,  to 
"be  submitted  to  a  Convention  of  delegates  to 
be  chosen  in  each  state  by  the  people  thereof, 
under  the  recommendation  of  its  Legislature,  for 
their  assent  and  ratification."  This  mode  of  pro- 
ceeding was  adopted,  and  the  proposed  Constitu- 
tion was  accordingly  submitted  to  the  people, 
who  acted  upon  it  in  the  only  manner  in  which 
they  can  act  efl'ectually  and  wisely  on  such  sub- 
jects, by  assembling  in  conventions.  They  as- 
sembled in  their  respective  states^  not  merely  from 
convenience,  but  from  necessity.  There  existed 
no  authority  under  the  Confederation,  as  now  ex- 
ists under  the  Constitution,  for  calling  a  general 
convention ;  and  if  such  authority  had  existed, 
that  mode  would  not  have  been  the  proper  one, 
in  a  case  where  the  people  were,  in  effect,  to  pass 
upon  virtual  amendments  and  partial  abrogations 
of  their  state  coiistitutions.  They  assembled  and 
acted,  therefoic,  in  their  several  states,  the  peo- 
ple of  each  svaic  thus  exercising  a  separate  and 
independent  voice  m  the  adoption  of  the  Federal 
Constitution..    But  the  measure  they  adopted  ^lid 


CONSTITUTIONAL   JURISPRUDENCE.         323 

not  on  that  account  cease  to  be  the  act  of  the 
people  themselves,  or  become  the  measure  of  the 
state  governments. 

From  these  state  convenlions,  then,  the  Con- 
stitution of  the  United  States  owes  its  whole  au- 
thority. The  instrument  submitted  to  them  pur- 
ports on  the  face  of  it  to  proceed  from  "  the  peo- 
ple of  the  United  States^'''  to  be  "  ordained  and  es- 
ablished"  in  their  name  ;  and  is  declared  to  be 
thus  ordained  and  established  ''in  order  to  form 
a  more  perfect  union,  to  establish  justice,  ensure 
domestic  tranquillity,  and  secure  the  blessings  of 
liberty  to  them  and  their  posterity."  Now,  if 
the  people  of  the  United  States  had  never  before 
acquired  a  common  character,  they  assumed  it 
then.  The  preamble  to  the  Federal  Constitution, 
containing  these  declarations,  is  an  essential  and 
necessary  part  of  that  instrument;  and  it  not 
only  enumerates  the  objects  for  which  it  was 
formed,  but  designates  the  parties  by  whom,  and 
by  whose  authority  alone,  it  was  "ordained  and 
established."  The  assent  of  the  states  in  their 
sovereign  capacities  is  implied,  if  not  expressed, 
in  calling  their  conventions,  and  thus  submitting 
the  new  scheme  of  government  to  the  people. 
But  the  people  of  each  state  were  at  perfect  lib- 
erty to  accept  or  reject  it,  and  their  act  was  final. 
The  Constitution  required  not  the  affirmance  of 
the  state  governments,  nor  could  it  be  negatived 
by  their  act ;  but,  Avhen  ratified  by  the  people, 
it  became  of  perfect  obligation,  and  bound  the 
states. 

It  has,  to  be  sure,  been  said  that  the  people 
had  already  surrendered  all  their  powers  to  the 
state  governments,  and  had  nothing  more  to 
give.     But  the  question  whether  the  people  may 


324  LECTURES    ON 

resume  and  modify  the  powers  granted  by  them 
to  the  state  or  general  governments  for  their 
own  benefit,  does  not,  surely,  remain  to  be  settled 
in  this  country.  The  same  sovereign  powers 
which  had  separately  established  the  state  gov- 
ernments, united  with  each  other  in  forming  a 
paramount  sovereignty,  and  establishing  a  su- 
preme government.  For  this  purpose  each  yield- 
ed a  portion  of  its  individual  sovereignty,  and 
modified  its  state  constitution,  by  rendering  it 
subordinate  to  the  Federal  power.  Their  au- 
thority to  do  this  cannot  for  a  moment  be  seri- 
ously doubted.  Much  more,  indeed,  might  the 
.egitimacy  of  the  Federal  Government  have  been 
questioned,  had  it  been  erected  by  the  states  to 
operate  upon  the  individual  citizens  of  the  sever- 
al states.  The  powers  delegated  to  the  state 
governments  were  to  be  exercised  by  themselves, 
not  by  a  distinct  and  independent  sovereignty 
erected  by  them.  To  the  formation  of  a  league 
such  as  the  Confederation,  the  state  governments 
were  certainly  competent.  But  when,  "in  order 
to  form  a  more  perfect  union^'*  and  change  that 
league  into  an  effective  government,  clothed  with 
high  sovereign  powers  for  national  objects,  and 
acting  directly  on  the  people  as  individuals,  the 
necessity  of  referring  it  to  the  people  themselves, 
and  deriving  its  powers  immediately  from  them, 
was  universally  felt  and  acknowledged  ;  and  the 
article  of  the  Constitution  which  provides,  as  one 
of  the  modes  for  its  amendment,  a  convention  oj 
the  people  of  the  United  States^  is  conclusive  as  to 
the  real  character  of  the  instrument,  and  the  sense 
in  which  it  must  have  been  understood. 

The  Government   of  the  Union,  then,  is  em 
phatically  nnd  truly  a  government  of  the  people 


CONSTITUTIONAL    JURISPRUDENCE.  325 

In  form  and  substance,  it  emanates  from  them ; 
its  powers  are  granted  by  them,  and  are  to  be 
exercised  directly  on  them  as  individuals,  and  for 
their  common  benefit ;  and  can  be  abrogated  only 
by  their  consent.  This  government,  however, 
is  acknowledged  by  all  to  be  a  government  of 
enumerated  powers.  The  principle  that  it  can 
only  exercise  the  powers  granted  to  it  is  admit- 
ted on  all  hands;  but  questions  respecting  the 
extent  of  the  powers  actually  granted  to  it  are, 
as  we  have  seen,  perpetually  arising,  and  will 
probably  continue  to  arise,  as  long  as  the  system 
shall  exist.  In  discussing  these  questions,  the 
conflicting  powers  of  the  General  and  State  Gov- 
ernments must  be  brought  into  view ;  and  the 
supremacy  of  their  respective  laws,  when  in  op- 
position to  each  other,  must  be  settled  by  that 
power  in  the  Federal  Constitution  which  was 
created,  among  others,  for  this  express  purpose 
Though  limited  in  its  powers,  it  would  seem  to 
result  necessarily,  from  the  nature  of  the  Genera. 
Government,  that  it  should  be  supreme  within  its 
sphere  of  action.  It  is  the  government  of  all ;  its 
powers  are  delegated  by  all ;  it  represents  all ; 
and  it  acts  for  all,  and  upon  all.  Though  any 
one  state  may  be  willing  to  control  its  operations, 
no  other  state  is  willing  that  other  states  should 
control  them.  The  Mation^  on  those  subjects 
upon  which  it  can  act  at  all,  must  necessarily 
bind  its  component  parts.  But  th^  question  is 
not  left  to  mere  reason ;  the  people  have  in  ex- 
press terms  decided  it,  by  adopting  the  clause 
now  under  discussion,  in  conjunction  with  that 
requiring  the  oath  to  support  the  Federal  Con- 
stitution to  be  taken  by  every  state,  as  well  as 
Federal  officer.     And  yet  we  have  witnessed  an 


326  LECTURES    ON 

attempt  on  the  part  of  one  of  the  states,  not 
merely  to  assert  and  vindicate  its  own  suprema* 
cy,  in  cases  of  collision  with  the  authority  of  the 
Union,  and  to  reject  the  control  and  jurisdiction 
of  the  suPuEME  ARBITER  on  all  constitutional  ques- 
tions, but  by  its  own  act  to  repudiate  and  nullify 
an  act  of  Congress,  which  it  took  upon  itself  to 
pronounce  to  be  contrary  to  the  Constitution,  and 
insisted  that  its  decision  \yas  final.  This  mon- 
strous claim  it  even  pretended  to  reconcile  with 
the  doctrines  of  the  Federal  Constitution  itself, 
founding  it  principally  on  the  amendment  which 
declares  that  '^  the  powers  not  delegated  to  the 
United  States,  nor  prohibited  to  the  states,  are 
reserved  to  the  states  respectively,  or  to  the  peo- 
ple," and  thereby  assuming  that  the  power  exer- 
cised by  Congress  in  passing  the  law  in  question 
was  not  delegated  to  the  General  Government, 
and  that  the  power  claimed  by  the  state  was  not 
prohibited  to  it  by  the  Federal  Constitution,  which 
were  no  other  than  the  very  points  in  contro- 
versy. 

But  this  heresy  was  promptly  met  and  ably  re- 
futed by  the  proclamation  issued  on  the  occasion 
by  the  President  of  the  United  States.*  This 
admirable  document,  which  confers  more  dura- 
ble and  honourable  fame  on  the  name  of  General 
Jackson  than  even  the  victory  of  New-Orleans, 
exhibits  the  true  doctrines  of  the  Constitution  in 
strict  conforjpfiity  with  those  principles  of  con- 
struction which  I  have  endeavoured  to  explain 
and  enforce.  In  language  becoming  the  dignity 
and  responsibility  of  his  station,  the  chief  magis- 

*  This  celebrated  state  paper  is  well  known  to  have  been  the 
production  of  the  late  Edward  Livingston,  then  Secretary  of  State. 
— Vide  Appendix  K. 


CONSTITUTION  A  I,    JUU  I  SPRUDENCE.  327 

trate  of  the  Union  reminds  the  individuals  concern- 
ed in  these  proceedings  of  their  paramount  obliga- 
tions as  citizens  of  the  United  States,  and  warns 
them  of  the  treasonable  tendency  of  their  acts  ; 
and  upon  his  subsequent  reference  of  the  subject 
to  the  National  Legislature,  he  recommended  the 
adoption  of  such  measures  as  were  necessary  to 
enforce  the  laws  of  the  Union,  and  suppress  the 
opposition  to  their  execution,  devised  by  evil 
councils  and  authorized  in  an  evil  hour,  by  the 
State  of  South  Carolina.  The  act  required  was 
passed ;  and  thus  has  every  department  of  the 
government  concurred  in  the  declaration  appro- 
ved and  sanctioned  by  a  vast  majority  of  the  peo- 
ple, that  the  Government  of  the  United  States  is 
supreme  within  its  limited  jurisdiction,  and  that 
its  laws  in  pursuance  of  the  Constitution  form  the 
supreme  law  of  the  land,  "  anything  in  the  Consti- 
tution and  laws  of  any  state  to  the  contrary  not- 
withstanding;" and  that  the  existence  and  effect 
of  a  collision  between  them  must  be  decided  by 
the  general  head,  and  not  by  any  of  the  members 
of  the  Union. 

V.  The  last  provision  contained  in  the  Consti- 
tution for  giving  efficacy  to  its  powers  is  that 
by  which  effect  and  operation  were  given  to  the 
system  by  declaring  that  "  ^Ae  ratifications  of  the 
conventions  of  nine  states  should  be  sufficient  for 
its  establishment  between  the  states  so  ratifying  the 
%ame?^ 

The  express  authority  of  the  people  alone  could 
give  validity  to  the  Constitution  ;  and  to  have  re- 
quired the  unanimous  ratification  of  the  people 
of  the  several  states  would  have  subjected  the  es 
sential  interests  of  the  whole  to  the  caprice  or 
corruption  of  the  smallest  minority  in  any  one 


328  LECTURES    ON 

state.  But  a  question  of  a  very  delicate  nature 
arose  with  respect  to  this  article  when  the  Con- 
stitution was  proposed  for  adoption — a  question 
similar  in  its  character  to  the  one  which  has  just 
been  discussed.  It  was  asked  by  the  objectors 
to  the  Federal  system  upon  what  principle  it  was 
that  the  Confederation,  which  stood  in  the  solemn 
form  of  a  compact  between  the  states,  could  be  su- 
perseded without  unanimous  consent ;  and  it  was 
thereupon  suggested  by  Mr.  Madison,  in  one  of 
the  numbers  of  "  The  Federalist,"  that  an  answer 
might  be  found  without  searching  beyond  the 
principles  of  the  former  compact  itself.  It  had 
been  noted  among  its  defects,  that  in  many  of 
the  states  it  had  received  no  higher  sanction 
than  a  mere  legislative  ratification.  The  princi- 
ciple  of  reciprocity,  therefore,  seemed  to  require 
that  its  obligation  on  the  other  states  in  which 
it  had  been  ratified  by  the  people  in  their  conven- 
tions should  be  reduced  to  the  same  standard.  A 
compact  between  independent  sovereigns,  found- 
ed, as  was  the  Confederation,  upon  acts  of  legis- 
lative authority,  could  pretend  to  no  higher  va- 
lidity than  a  league  or  treaty  between  the  par- 
ties ;  and  it  is  the  established  doctrine  that  all 
the  articles  of  a  treaty  are  mutual  conditions  ; 
a  breach  of  any  one  article  is  a  breach  of  the 
whole  ;  and  a  breach  committed  by  any  of  the 
parties  absolves  the  others,  and  authorizes  them, 
if  they  choose,  to  pronounce  the  compact  viola- 
ted, and  at  an  end. 

Had  it  been  necessary  to  appeal  to  these  prin- 
ciples as  a  justification  for  dispensing  with  the 
consent  of  particular  states  to  a  dissolution  of  the 
compact  then  existing,  it  would  by  no  means 
have  been  difficult  to  confront  the  objecting  par- 


CONSTITUTIONAL    JURISPRUDENCE.  329 

.ies  with  multiplied  and  important  infractions  of 
the  Articles  of  Confederation.  But  a  more  di 
rect  answer  was  given  to  them  by  recurring  to 
the  absolute  necessity  of  the  case,  to  the  great 
principle  of  self-preservation,  to  the  transcendent 
law  of  God  and  nature,  which  declares  the  safe- 
ty and  happiness  of  society  to  be  the  objects 
which  all  political  institutions  should  aim  to  ac- 
complish, and  for  which  they  may  all  be  sacrifi- 
ced J  and  from  what  is  known  of  the  state  of  pub- 
lic affairs  at  that  portentous  crisis,  w^e  cannot 
doubt  that  this  answ^er  was  felt  to  be  conclusive. 
It  is,  however,  well  worthy  of  observation, 
that  it  was  not  pretended  on  this  occasion  that 
any  of  the  states  could  withdraw  even  from  the 
Confederation,  considered  merely  as  a  treaty  of 
alliance,  at  its  mere  will  and  pleasure  5  nor  ab- 
solve itself  at  its  own  discretion  from  its  perpet- 
ual obligation,  except  in  cases  of  the  extreme  ur- 
gency of  self-preservation,  or  of  the  breach  or 
violation  of  the  compact  by  some  other  of  the 
parties,  of  which  the  several  parties,  from  the  very 
nature  of  the  Confederation,  as  a  treaty  betw^een 
independent  sovereigns,  were  themselves  the 
judges.  It  has,  nevertheless,  been  contended,  as 
we  have  already  had  occasion  to  lament,  that  a 
state  has  a  right,  under  the  present  Constitution, 
independently  of  the  natural  right  of  self-preser- 
vation, and  resistance  to  intolerable  oppression 
to  secede,  at  its  own  will  and  discretion,  from  tht 
Union.  But  if  the  Federal  Constitution  be  a  gov- 
ernment owing  protection  to  individuals  and  en- 
titled to  their  obedience,  whether  formed  by  the 
people  of  the  United  States  in  the  aggregate,  or 
by  the  same  people  as  citizens  of  the  respective 
states,  no  state  authority  can  dissolve  the  rela- 
Cc 


'^di)  LECTURES    ON 

tions  subsisting  between  that  government  and  the 
individuals  subjected  in  either  mode  to  its  au- 
thority. From  the  very  nature  of  those  relations, 
nothing  can  dissolve  them  but  revolution  ;  and 
there  can,  therefore,  be  no  such  thing  as  secessio?i 
without  revolution.  The  Constitution  establishes 
a  union  between  the  people  of  the  several  states, 
intended  to  be  perpetual.  It  contains  numer- 
ous provisions  founded  on  that  supposition,  and 
among  them,  one  for  its  own  amendment ;  none 
for  its  abandonment.  It  declares  that  new  states 
may  be  admitted  into  the  Union,  but  not  that  old 
states  may  withdraw  from  it.  The  Union  is  not, 
like  the  Confederation,  reducible  even  to  a  per- 
petual alliance  between  the  states,  much  less  to 
a  temporary  one  ;  but  it  is  an  association  of  the 
people  of  the  several  states  in  one  mass,  under 
a  permanent  and  paramount  constitution  of  gov- 
ernment, operating  upon  them  as  individuals, 
created  and  assented  to  by  that  power  in  each 
state  which  alone  had  authority  to  abrogate  its 
particular  Constitution,  or  so  far  to  modify  it  as 
to  surrender  powers  to  the  General  Government 
which  had  previously  been  delegated  to  the  state 
governments.  JVb  staie^  therefore,  can  undo  what 
the  people  have  done,  nor  absolve  its  citizens  from 
their  obligations  to  obey  the  laws  of  the  Union. 
It  cannot  divest  them  of  their  paramount  rights 
as  citizens  of  the  United  States  ;  nor  can  the  mem- 
bers of  the  state  legislatures  renounce  their  own 
oaths  to  support  the  Federal  Constitution  as  the 
supreme  law  of  the  land  ;  neither  can  any  con- 
vention of  the  people  of  any  state,  any  more  than 
the  people  themselves,  collectively  or  individu- 
ally, dispense  with  their  obligations,  or  dissolve 
their  allegiance  to  the  United  States,  unless  they 


CoNSTlTUllONAL    JURISPRUDENCE.         331 

respectively  possess  the  constitutional  power  of 
settling  for  themselves  the  construction  of  this 
supreme  law  in  all  doubtful  cases. 

The  practical  result  of  this  great  question  turns, 
then,  on  this  single  point.  It  has  not  as  yet  been 
seriously  pretended  that  each  individual  may 
judge  for  himself,  and  determine  in  his  own  case, 
ihe  nature  and  extent  of  his  obligations  as  a  mem- 
ber of  the  Union.  But  if  the  state  within  whose 
local  jurisdiction  he  may  happen  to  reside,  may 
judge  for  him,  or  for  itself,  in  a  case  of  an  alle- 
ged violation  of  the  Federal  Constitution,  and  rinal- 
/y  decide  and  execute  their  respective  decisions 
by  their  own  powers,  the  inference  follows  that, 
oeing  sovereign^  there  is  no  power  to  control  the 
decision  of  the  state,  and  its  own  judgment  on  its 
own  contract  must  be  conclusive.  But  this  doc- 
trine is  founded  in  mere  theory  and  assumption  ; 
rtnd  is  refuted,  not  only  by  plain  and  express  con- 
stitutional provisions,  but  by  the  very  nature  of 
the  compact.  It  has  been  shown  most  conclu- 
sively, in  the  legislative  halls,*as  well  as  in  the 
judicial  tribunals  of  the  Union,  that  the  Govern- 
ment of  the  United  States  possesses,  in  its  appro- 
priate departments,  the  authority  of  final  decis- 
von  on  all  these  questions  of  power,  both  by  ne 
^essary  implication  and  express  grant, 

1.  If  the  Constitution  be,  indeed,  a  govern- 
ment existing  over  all  the  states,  operating  upon 
individuals,  and  not  a  mere  treaty  of  alliance,  it 
nust,  upon  general  principles,  possess  the  au- 
Jiority  in  question,  as  it  is,  in  fact,  an  authority 
naturally  belonging  to  all  governments.  And  al- 
though  the   Constitution   establishes    a    govern- 

*  Vide  the  speeches  of  Mr.  Webster  on  this  subject  in  the  Sen 
ale  of  the  United  States. 


332  LECTURES  ON 

merit  of  limited  powers,  yet,  as  it  extends  equal- 
ly over  all  the  states,  it  follows,  independently  ot 
the  express  declaration  to  that  effect,  that  to  the 
extent  of  those  powers  it  must  necessarily  be 
supreme  ;  while,  from  the  nature  of  the  powers 
granted,  that  government  must  be  Mational  in  its 
character,  as  well  as  Federal  in  its  principles  ol 
organization.  The  inference,  then,  appears  tc 
be  irresistible,  that  the  government,  thus  created 
by  the  whole,  for  the  whole,  and  extending  over 
the  whole,  must  possess  an  authority  superior  to 
that  of  the  particular  governments  of  any  of  its 
parts.  As  the  Government  of  the  Union,  it  has 
a,  legislative  power  of  its  own,  and  a  judicial  pow- 
er coextensive  with  the  legislative  power.  To 
hold,  therefore,  that  these  are  not  supreme,  but 
subordinate  in  authority  to.the  legislative  and  ju- 
dicial powers  of  a  state,  is  equally  repugnant  to 
common  sense,  and  to  all  sound  reasoning  and 
established  principles.  The  legislative,  execu- 
tive, and  judicial  departments  of  the  Union  must 
each  necessarily  judge  of  the  extent  of  its  own 
powers,  as  often  as  it  is  called  on  to  exercise 
them ;  and  that  independently  of  state  control, 
or  they  could  not  act  at  all.  Without  any  ex- 
press declaration,  therefore,  to  that  effect  in  the 
Constitution,  the  whole  question  is  necessarily 
decided  by  those  provisions  which  create  a  legis- 
lative, an  executive,  and  a  judicial  power;  for  if 
the  powers  exist  in  a  government  intended  for 
the  Union,  the  inevitable  consequence  is,  that  the 
acts  of  the  Federal  Legislature  and  the  decisions 
of  the  Federal  judiciary  must  be  binding  over 
the  whole  Union,  and  on  each  of  its  federative 
part?.  From  the  nature  of  the  case,  then,  and  as 
an  inference  wholly  unav  i>idable,  the  laws  of  Con 


CONSTITUTIONAL    JURISPRUDENCE.  333 

^ress  and  the  decisions  of  the  Federal  Courts 
must  be  of  higher  authority  than  those  of  the 
states. 

2.  But  the  Constitution,  as  we  have  already- 
seen,  has  not  left  this  point  without  full  and  ex- 
plicit provision.  For  if  the  express  grant  to  Con- 
gress of  distinct  and  substantive  power  to  make 
all  laws  necessary  and  proper*  for  carrying  into 
execution  all  other  powers  vested  in  the  Gov- 
ernment of  the  United  States  mean  anything,  it 
means  that  Congress  may  determine  what  is  ne- 
cessary and  proper  for  that  purpose  ;  and  if  Con- 
gress may  judge  of  what  is  requisite  for  the  ex- 
ecution of  those  powers,  it  must  of  necessity 
judge  of  their  extent,  as  well  as  interpret  them. 
With  regard  to  the  judicial  power,  the  Constitu- 
tion  is  still  more  explicit  and  emphatic.  If  any 
case  arise  depending  on  the  construction  of  the 
Federal  Constitution,  the  judicial  power  of  the 
Union,  we  have  seen,  extends  to  it,  in  whatsoever 
court  it  may  originate.  Of  all  such  cases  the  Su- 
preme Court  of  the  Union  has  appellate  jurisdic- 
tion, and  its  judgments  are  final  and  conclusive. 
Nothing  more  effectual  could  have  been  done  for 
subjecting  all  constitutional  questions,  whenever 
and  wherever  they  may  arise,  to  the  ultimate  de- 
cision of  the  Supreme  Court  than  has  actually 
been  accomplished  by  this  salutary  provision  oi 
the  Constitution.  Congress  was  saved  by  it  from 
the  necessity  of  any  supervision  of  the  state  laws  ; 
and  while  the  whole  sphere  of  state  legislation 
was  thus  left  untouched,  an  adequate  security 
was  obtained  against  any  infringenient  of  the  con- 
stitutional power  of  the  General  Government 

It  is  clear,  then,  that  the  Constitption,  bj^  ex- 
press grant,  as  well  as  by  necessary  implication, 


S34:  LECTURES    ON 

has  rendered  the  Government  of  the  United 
States,  in  its  several  departments,  the  judge  of 
its  own  powers  ;  and  that  the  Supreme  Court,  in 
order  to  preserve  uniformity  in  the  interpretation 
and  administration  of  tlie  laws  of  the  Union,  must 
be  the  ultimate  tribunal  to  decide  in  the  last  resort 
upon  them,  in  all  cases  of  a  constitutional  nature 
which  arise  in  a  suit  at  law  or  equity,  either  in 
the  Federal  or  State  Courts.  The  early  legisla- 
tion of  Congress,  the  Judiciary  Act  of  1789,  and 
the  whole  course  of  judicial  decisions  since  that 
period,  concur  in  proving  that  there  is,  in  fact 
and  in  truth,  a  supreme  law,  and  a  final  interpreter 
of  the  Constitution,  created  by  the  Constitution  it- 
self, to  the  exclusion  of  the  authority  and  jurisdic- 
tion of  the  several  states.  A  state,  therefore,  hav- 
ing no  power  to  interpret  the  Constitution  finally 
for  itself,  cannot  secede  from  the  Union  without 
adopting  a  proceeding  essentially  revolutionary  in 
its  character  ;  and  every  attempt  by  a  state  to  ab- 
rogate or  nullify  a  law  of  Congress  is  not  only  a 
usurpation  of  the  powers  of  the  National  Govern- 
ment, but  of  the  rights  of  the  other  states  ;  for  if 
the  states,  as  such,  have  equal  rights  in  matters 
concerning  the  whole,  then  for  one  state  to  set  up 
its  judgment  against  that  of  the  others,  and  to 
insist  on  executing  its  own  judgment  by  force,  is 
a  manifest  usurpation  upon  the  rights  of  all  the 
rest ;  and  if  that  be  revolutionary  which  arrests 
the  legislative,  executive,  and  judicial  powers  of 
the  General  Government  in  their  course,  dispen- 
ses with  existing  oaths,  dissolves  the  obligations 
of  allegiance  to  the  supreme  authority  of  the 
Union,  and  elevates  another  power  in  its  place, 
then  are  nullification  and  secession,  in  character 
und  principle,  equally  revolutionary. 


CONSTITUTICNAL    JURISPRUDENCE.  335 

1  have  now  completed  the  proposed  examina- 
Uoti  of  the  powers  vested  in  the  General  Govern- 
ment, as  well  as  of  its  fundamental  principles  and 
organization.  And  I  trust  it  has  abundantly  and 
.satisfactorily  appeared,  1.  That  all  the  powers 
requisite  to  secure  the  objects  of  National  Union 
are  vested  in  the  Federal  Government,  while 
those  only  which  are  not  essential  to  that  object 
are  reserved  to  the  states,  or  to  the  people.  2. 
That  this  National  Government,  though  limited  in 
its  powers  to  national  objects,  is  supreme  in  the 
exercise  of  those  powers,  whether  exclusive  or 
concurrent,  express  or  implied  ;  and  that,  when- 
ever any  of  these  powers  come  into  collision 
with  the  concurrent  or  independent  powers  of 
the  states,  the  state  authority,  which  is  subordi- 
nate, must  yield  to  that  of  the  nation,  which  is 
supreme.  3.  That  this  Constitution,  the  laws 
made  in  pursuance  of  it,  and  treaties  existing 
under  its  authority,  are  the  supreme  law  of  the 
landy  and,  both  from  the  nature  of  the  case,  and 
the  provisions  of  the  Constitution,  the  National 
Legislature  must  judge  of  and  interpret  the  su- 
preme law,  as  often  as  it  exercises  its  legislative 
functions  5  that  the  chief  executive  magistrate  of 
the  Union,  in  like  manner,  possesses  the  right  of 
judging  of  the  nature  and  extent  of  his  political 
authority  5  and  that,  in  all  cases  assuming  the 
character  of  a  suit  in  law  or  equity,  the  supreme 
judicial  tribunal  of  the  Union  is  the  final  inter- 
preter of  the  Constitution.  4.  That  no  state  au- 
thority has  power  to  dissolve  the  relations  be- 
tween the  Government  of  the  United  States  and 
the  people  of  the  several  states,  and  that,  conse- 
quently, no  state  has  a  right  to  secede  from 
the  Union,  except  under  such  cixcumstances  as 


336  LECTURES    ON 

would  justify  a  revolution  ;  and  that  an  attempt 
by  any  state  to  abrogate  or  annul  an  act  of  the 
National  Legislature  is  a  direct  usurpation  of 
the  powers  of  the  General  Government,  an  in- 
fringement of  the  rights  of  all  the  other  states, 
and  a  violation  of  the  paramount  obligation  of  its 
members  to  support  and  obey  the  Federal  Con- 
stitution. 

In  this  exposition,  it  has,  I  trust,  been  rendered 
also  manifest,  that  unless  such  were  the  nature 
and  principles  of  that  Constitution,  it  w^ould  nev- 
er have  accomplished,  as  it  has  most  effectually 
and  happily,  the  great  ends  for  which  it  was  or- 
dained, nor  delivered  the  people  of  this  country 
from  the  evils  they  had  experienced  under  the 
Confederation.  I  trust,  too,  that,  in  revicAving' 
this  system  of  government  in  its  practical  opera- 
tion and  results,  you  will  have  perceived  that  we 
have  abundant  cause  of  gratitude  to  Heaven,  not 
only  for  defending  us  from  those  former  evils, 
which  must  necessarily  have  increased  under  a 
mere  alliance  between  the  states,  but  for  bestow- 
ing on  us,  in  their  stead,  those  blessings  of  liber- 
ty, law,  order,  peace,  and  prosperity,  which,  un- 
der Providence,  the  present  Constitution  has  se- 
cured to  the  present  generation  and  promises  to 
posterity.  And,  finally,  I  trust,  most  confidently, 
that  you  will  not  hesitate  to  join  with  me  in  ear- 
nest and  devout  prayer  to  the  Supreme  Ruler  of 
the  universe  that  our  National  Government,  as 
established  by  this  Constitution,  and  the  happi- 
ness hitherto  enjoyed  under  it,  may  stand  as  fast 
and  endure  as  long  as  the  vast  continent  over 
which  it  seems  destined  to  extend  its  influence 
or  its  sway. 


APPENDIX. 


A,  p.  29. 

DECLARATION  OF  INDEPENDENCE. 
In  Congress,  July  4,  1776. 

When,  in  the  course  of  human  events,  it  becomes  neces 
sary  for  one  people  to  dissolve  the  political  bands  which  have 
connected  them  with  another,  and  to  assume,  among  the 
powers  of  the  earth,  the  separate  and  equal  station  to  which 
the  laws  of  nature  and  of  nature's  God  entitle  them,  a  de- 
cent respect  to  the  opinions  of  mankind  requires  that  they 
should  declare  the  causes  which  impel  them  to  the  separa- 
tion. 

We  hold  these  truths  to  be  self-evident :  that  ail  men  are 
created  equal ;  that  they  are  endowed  by  their  Creator  with 
certain  unalienable  rights  ;  that  among  these  are  life,  liber- 
ty, and  the  pursuit  of  happiness ;  that  to  secure  these 
rights,  governments  are  instituted  among  men,  deriving 
their  just  powers  from  the  consent  of  the  governed  ;  that 
whenever  any  form  of  government  becomes  destructive  of 
these  ends,  it  is  the  right  of  the  people  to  alter  or  to  abolish 
it,  and  to  institute  a  new  government,  laying  its  foundation 
on  such  principles,  and  organizing  its  powers  in  such  form, 
as  to  them  shall  seem  most  likely  to  effect  their  safety  and 
happiness.  Prudence,  indeed,  will  dictate  that  governments 
long  established  should  not  be  changed  for  light  and  tran- 
sient causes ;  and,  accordingly,  all  experience  hath  shown 
that  mankind  are  more  disposed  to  suffer,  while  evils  are 
sufferable,  than  to  right  themselves  by  abolishing  the  forms 
to  which  they  are  accustomed.  But  when  a  long  train  of 
abuses  and  usurpations,  pursuing  invariably  the  same  object, 
svinces  a  design  to  reduce  them  under  absolute  despotism, 
it  is  their  right,  it  is  their  duty,  to  throw  off  such  govern- 
ment, and  to  provide  new  guards  for  their  future  security. 
Such  has  been  the  patient  sufferance  of  these  colonies,  and 
such  is  now  the  necessity  which  constrains  them  to  alter 
their  former  systems  of  government.  The  history  of  the 
present  King  o*  Great  Britain  is  a  history  of  repeated  injii- 


338  APPENDIX. 

ries  and  usurpations,  all  having  in  direct  object  the  estab- 
lishment of  an  absolute  tyranny  over  these  states.  To 
prove  this,  let  facts  be  submitted  to  a  candid  world. 

He  has  refused  his  assent  to  laws  the  most  wholesome 
and  necessary  for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate 
and  pressing  importance,  unless  suspended  in  their  opera- 
tion till  his  assent  should  be  obtained ;  and  when  so  sus- 
pended, he  has  utterly  neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation 
of  large  districts  of  people,  unless  those  people  would  relin- 
quish the  right  of  representation  in  the  Legislature  ;  a  right 
inestimable  to  them,  and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual, 
uncomfortable,  and  distant  from  the  depository  of  their  pub- 
lic records,  for  the  sole  purpose  of  fatiguing  them  into  com- 
pliance with  his  measures. 

He  has  dissolved  representative  houses  repeatedly,  for 
opposing,  with  manly  firmness,  his  invasions  on  the  rights 
of  the  people. 

He  has  refused  for  a  long  time,  after  such  dissolutions,  to 
cause  others  to  be  elected  ;  whereby  the  legislative  powers, 
incapable  of  annihilation,  have  returned  to  the  people  at 
large  for  their  exercis^ ;  the  state  remaining,  in  the  mean 
time,  exposed  to  all  the  dangers  of  invasion  from  without, 
and  convulsions  within. 

He  has  endeavoured  to  prevent  the  population  of  these 
states ;  for  that  purpose  obstructing  the  laws  for  naturali- 
zation of  foreigners  ;  refusing  to  pass  others  to  encourage 
tlieir  migrations  hither,  and  raising  the  conditions  of  new 
appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice,  by  lefu- 
sing  his  assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependant  on  his  will  alone  for  the 
tenure  of  their  offices,  and  the  amount  and  payment  of 
their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hith- 
er swarms  of  officers,  to  harass  our  people  and  eat  out 
their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies, 
without  the  consent  of  our  legislatures. 

He  has  affected  to  render  the  military  independent  of 
and  superior  to,  the  civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdic- 
tion foreign  to  our  Constitution,  and  unacknowledged  byoui 


APPENDIX.  339 

iaws ;  giving  his  assea*^  to  their  acts  of  pretended  legisla- 
tion ; 

For  quartering  large  bodies  of  armed  troops  among  us  : 

For  protecting  them,  by  a  mock  trial,  from  punishment  for 
any  murders  which  they  should  commit  on  the  inhabitants 
of  these  states : 

For  cutting  off  our  trade  with  all  parts  of  the  world: 

For  imposing  taxes  on  us  without  our  consent : 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial 
by  jury  : 

For  transporting  us  beyond  seas  to  be  tried  for  pretended 
offences : 

For  abolishing  the  free  system  of  English  laws  in  a  neigh 
bouring  province,  establishing  therein  an  arbitrary  govern- 
ment, and  enlarging  its  boundaries,  so  as  to  render  it  at 
once  an  example  and  fit  instrument  for  introducing  the  same 
absolute  rule  into  these  colonies  : 

For  taking  away  our  charters,  abolishing  our  most  valua- 
oie  laws,  and  altering  fundamentally  the  forms  of  our  gov- 
ernments : 

For  suspending  our  own  legislatures,  and  declaring  them- 
selves invested  with  power  to  legislate  for  us  in  all  cases 
whatsoever. 

He  has  abdicated  government  here,  by  declaring  us  out 
of  his  protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burned 
our  towns,  and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign 
mercenaries  to  complete  the  works  of  death,  desolation, 
and  tyranny,  already  begun  with  circumstances  of  cruelty 
and  perfidy  scarcely  paralleled  in  the  most  barbarous  ages, 
and  totally  unworthy  the  head  of  a  civilized  nation. 

He  has  constrained  our  fellow-citizens,  taken  captive  on 
the  high  seas,  to  bear  arms  against  their  country,  to  become 
the  executioners  of  their  friends  and  brethren,  or  to  fall 
themselves  by  their  hands. 

He  has  excited  domestic  insurrections  among  us,  and  has 
endeavoured  to  bring  on  the  inhabitants  of  our  frontiers  the 
merciless  Indian  savages,  whose  known  rule  of  warfare  is  an 
undistinguished  destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  petitioned 
for  redress  in  the  most  humble  terms  :  our  repeated  peti- 
tions have  been  answered  only  by  repeated  injury.  A 
prince,  whose  character  is  thus  marked  by  every  act  which 
may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free  people. 


340  APPENDIX. 

Nor  have  we  been  wanting  in  attentions  to  our  British 
brethren.  We  have  warned  them,  from  time  to  time,  of 
attempts  by  their  Legislature  to  extend  an  unwarrantable 
jurisdiction  over  us.  We  have  reminded  them  of  the  cir- 
cumstances of  our  emigration  and  settlement  here.  We 
have  appealed  to  their  native  justice  and  magnanimity,  and 
we  have  conjured  them,  by  the  ties  of  our  common  kindred, 
to  disavow  these  usurpations,  which  would  inevitably  inter- 
rupt our  connexions  and  correspondence.  They,  too,  have 
been  deaf  to  the  voice  of  justice  and  of  consanguinity.  We 
must,  therefore,  acquiesce  in  the  necessity  which  denounces 
our  separation,  and  hold  them,  as  we  hold  the  rest  of  man- 
kind, enemies  in  war,  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United  States 
of  America,  in  General  Congress  assembled,  appealing  to 
the  Supreme  Judge  of  the  world  for  the  rectitude  of  our  in- 
tentions, do,  in  the  name,  and  by  authority  of  the  good  peo- 
ple of  these  colonies,  solemnly  publish  and  declare,  that 
these  United  Colonies  are,  and  of  right  ought  to  be,  Free 
and  Independent  States  ;  that  they  are  absolved  from  all 
allegiance  to  the  British  crown,  and  that  all  political  con- 
nexion between  them  and  the  state  of  Great  Britain  is,  and 
ought  to  be,  totally  dissolved ;  and  that,  as  free  and  inde- 
pendent states,  they  have  full  power  to  levy  war,  conclude 
peace,  contract  alliances,  establish  commerce,  and  to  do  all 
other  acts  and  things  which  independent  states  may  of 
right  do.  And  for  the  support  of  this  declaration,  with  a 
firm  reliance  on  the  protection  of  Divine  Providence,  we 
mutually  pledge  to  each  other  our  lives,  our  fortunes,  and 
our  sacred  honour 

JOHN  HANCOCK 

c  Josiah  Bartlett, 
New-Hampshire.       <  William  Whipple, 

(  Matthew  Thornton. 

f  Samuel  Adams, 

Massachusetts  BayJ  ^Rl^^n  Tr^^l  Paine, 

VElbridge  Gerry. 
Rhode  island.  &c.    {  ^^.t^  K"' 

''Roger  Sherman, 
^  ..     .  J  Samuel  Huntington, 

Connecticut.  <!  ^,„i3^  Wilhams, 

Oliver  Wolcott. 


APPENDIX. 


341 


New- York. 


New-Jersey. 


Pennsylvania 


Delaware 


Maryland. 


Virginia. 


North  Carolina 


South  Carolina 


Georgia. 


/  William  Floyd, 
j. Philip  Livingston, 
I  Francis  Lewis, 
I  Lewis  Morris, 
r  Richard  Stockton, 
j  John  Witherspoon, 

<  Francis  Hopkinson, 
I  John  Hart, 

I  Abraham  Clark. 
/'Robert  Morris, 

Benjamin  Rush, 

Benjamin  Franklin, 
.  John  Morton, 
^  George  Clymer, 

James  Smith, 

George  Taylor, 

James  Wilson, 

George  Ross. 
(  Caesar  Rodney, 

<  George  Read, 

(  Thomas  M'Kean. 
/'Samuel  Chase, 
j  William  Paca, 
S  Thomas  Stone, 
I  Charles  Carroll,  of  Carrolllon 

George  Wythe, 

Richard  Henry  Lee, 

Thomas  Jefferson, 
^  Benjamin  Harrison, 
I  Thomas  Nelson,  Jun., 

Francis  Lightfoot  liCe, 
L  Carter  Braxton. 
*  William  Hooper, 

<  Joseph  Hewes, 
(  John  Penn. 
/'Edward  Rutledge, 

)  Thomas  Heyward,  Jun., 
I  Thomas  Lynch,  Jun., 
I  Arthur  Middleton. 
c  Button  Gwinnett, 

<  Lyman  Hall, 

(  George  Walton. 
Ff3 


342  APPENDIX. 

B,  p.  30. 

A?vTICLES  OF  CONFEDERATION  AND  PERPETUAL  UNION 

Between  the  States  of  New- Hampshire,  Massachusetts  Bay 
Rhode  Island  and  Providence  Plantations,  Connecticut,  New 
York,  New-Jersey,  Pennsylvania,  Delaware,  Maryland,  Vir 
gmia.  North  Carolina,  South  Carolina,  and  Georgia. 

In  Congress,  July  8,  1778. 

Article  I.  The  style  of  this  confederacy  shall  be,  *'  Tht 
United  States  of  America.^* 

Art.  II.  Each  state  retains  its  sovereignty,  freedom,  and 
independence,  and  every  power,  jurisdiction,  and  right 
which  is  not  by  this  confederation  expressly  delegated  to 
the  United  States  in  Congress  assembled. 

Art.  III.  The  said  states  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  de- 
fence, the  security  of  their  liberties,  and  their  mutual  and 
general  welfare,  binding  themselves  to  assist  each  other 
against  all  force  offered  to,  or  attacks  made  upon  them,  or 
any  of  them,  on  account  of  religion,  sovereignty,  trade,  or 
any  other  pretence  whatever. 

Art.  IV.  <^  1 .  The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
states  in  this  Union,  the  free  inhabitants  of  each  of  these 
states,  paupers,  vagabonds,  and  fugitives  from  justice  ex- 
cepted, shall  be  entitled  to  all  the  privileges  and  immunities 
of  free  citizens  in  the  several  states  ;  and  the  people  of  each 
state  shall  have  free  ingress  and  regress  to  and  from  any 
other  state,  and  shall  enjoy  therein  all  the  privileges  of  trade 
and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions  as  the  inhabitants  thereof  respectively  ;  provided 
that  such  restrictions  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  state  to  any  other 
state  of  which  the  owner  is  an  inhabitant ;  provided,  also, 
iliat  no  impositions,  duties,  or  restriction  shall  be  laid  bj 
iiJiy  state  on  the  property  of  the  United  States,  or  either  of 
them. 

^  2.  If  any  person  guilty  of  or  charged  with  treason,  fel- 
ony, or  other  high  misdemeanor  in  any  state,  shall  flee  from 
justice,  and  be  found  in  any  of  the  United  States,  he  shall 
upon  the  demand  of  the  governor  or  executive  power  of  the 
state  from  which  he  fled,  be  delivered  up  and  removed  to 
the  state  having  jurisdiction  of  his  offence. 


APPEiNDix.  34:^ 

^  3.  Fall  faith  and  credit  shall  be  given  in  each  of  these 
states  to  the  records,  acts,  and  judicial  proceedings  of  the 
courts  and  magistrates  of  every  other  state. 

Art.  V.  <5>  1.  For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be  an- 
nually appointed,  in  such  manner  as  the  Legislature  of  each 
state  shall  direct,  to  meet  in  Congress  on  the  first  Monday 
in  November  of  every  year,  with  a  power  reserved  to  each 
state  to  recall  its  delegates,  or  any  of  them,  at  any  time 
within  the  year,  and  to  send  others  in  their  stead  for  the 
remainder  of  the  year. 

^  2.  No  state  shall  be  represented  in  Congress  by  less  than 
two,  nor  more  than  seven  members ;  and  no  person  shall 
be  capable  of  being  a  delegate  for  more  than  three  years,  in 
any  term  of  six  years  ;  nor  shall  any  person,  being  a  dele- 
gate, be  capable  of  holding  any  office  under  the  United 
States  for  which  he,  or  any  other  for  his  benefit,  receives 
any  salary,  fees,  or  emolument  of  any  kind. 

^3.  Each  state  shall  maintain  its  own  delegates  in  a 
meeting  of  the  states,  and  while  they  act  as  members  of  the 
committee  of  the  states. 

<^  4.  In  determining  questions  in  the  United  States  in  Con- 
gress assembled,  each  state  shall  have  one  vote. 

^  5.  Freedom  of  speech  and  debate  in  Congress  shall  no* 
be  impeached  or  questioned  in  any  court  or  place  out  of 
Congress,  and  the  members  of  Congress  shall  be  protected 
in  their  persons  from  arrests  and  imprisonments  during  thr 
time  of  their  going  to  and  from,  and  attendance  on  Con- 
gress, except  for  treason,  felony,  or  breach  of  the  peace. 

Art.  VI.  ^  I.  No  state,  without  the  consent  of  the  Unite 
States  in  Congress  assembled,  shall  send  any  embassy  to 
or  receive  any  embassy  from,  or  enter  into  any  conference 
agreement,  alliance,  or  treaty  with  any  king,  prince,  or  state 
nor  shall  any  person  holding  any  office  of  profit  or  trust  un 
der  the  United  States,  or  any  of  them,  accept  of  any  present, 
emolument,  office,  or  title  of  any  kind  whatever,  from  any 
king,  prince,  or  foreign  state ;  nor  shall  the  United  States 
in  Congress  assembled,  or  any  of  them,  grant  any  title  of 
nobility. 

^  3.  No  two  or  more  states  shall  enter  into  any  treaty, 
confederation,  or  alliance  whatever  between  them,  without 
ilie  consent  of  the  United  States  in  Congress  assembled, 
specifying  accurately  the  purposes  for  which  the  same  is  to 
be  entered  into,  and  how  long  it  shall  continue. 


344  APPENDIX. 

^  3.  No  state  shall  lay  any  imposts  or  duties  which  may 
mterfere  with  any  stipulations  in  treaties,  entered  into  by 
the  United  States  in  Congress  assembled,  with  any  king, 
prince,  or  state,  in  pursuance  of  any  treaties  already  pro- 
posed by  Congress  to  the  courts  of  France  and  Spain. 

^  4.  No  vessels  of  war  shall  be  kept  up  in  time  of  peace 
by  any  state,  except  such  number  only  as  shall  be  deemed 
necessary  by  the  United  States  in  Congress  assembled  for 
the  defence  of  such  state,  or  its  trade :  nor  shall  any  body 
of  forces  be  kept  up  by  any  state  in  time  of  peace,  except 
such  number  only  as,  in  the  judgment  of  the  United  States 
in  Congress  assembled,  shall  be  deemed  requisite  to  garrison 
the  forts  necessary  for  the  defence  of  such  state  ;  but  every 
state  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred,  and  shall  provide, 
and  constantly  have  ready  for  use,  in  public  stores,  a  due 
number  of  fieldpieces  and  tents,  and  a  proper  quantity  of 
arms,  ammunition,  and  camp  equipage. 

<^  5.  No  state  shall  engage  in  any  war,  without  the  con- 
sent of  the  United  States  in  Congress  assembled,  unless 
such  state  be  actually  invaded  by  enemies,  or  shall  have  re 
ceived  certain  advice  of  a  resolution  being  formed  by  some 
nation  of  Indians  to  invade  such  state,  and  the  danger  is  so 
imminent  as  not  to  admit  of  delay  till  the  United  States  in 
Congress  assembled  can  be  consulted  ;  nor  shall  any  state 
grant  commissions  to  any  ships  or  vessels  of  war,  nor  let- 
ters of  marque  or  reprisal,  except  it  be  after  a  declaration 
of  war  by  the  United  States  in  Congress  assembled ;  and 
then  only  against  the  kingdom  or  state,  and  the  subjects 
thereof,  against  which  war  has  been  so  declared,  and  under 
such  regulations  as  shall  be  established  by  the  United  States 
in  Congress  assembled,  unless  such  state  be  infested  by  pi- 
rates ;  in  which  case  vessels  of  war  may  be  fitted  out  for 
hat  occasion,  and  kept  so  long  as  the  danger  shall  continue, 
or  until  the  United  States  in  Congress  assembled  shall  de- 
termine otherwise. 

Art.  VII.  When  land-forces  are  raised  by  any  state  for 
the  common  defence,  all  officers  of  or  under  the  rank  of 
colonel  shall  be  appointed  by  the  Legislature  of  each  state 
respectively  by  whom  such  forces  shall  be  raised,  or  in  such 
manner  as  such  state  shall  direct,  and  all  vacancies  sha^l  be 
filled  up  by  the  stale  which  first  made  the  appointment 

Art.  Vill.  All  charges  of  war,  and  all  other  expense*  *^iv^ 
sH;»il  be  incurred  for  the  common  defence  or  general  •"  ^ 


APPENDIX.  li\5 

fare,  and  allowed  by  the  United  States  in  Congress  assem- 
bled, shall  be  defrayed  out  of  a  common  treasury,  which 
shall  be  supplied  by  the  several  states,  in  proportion  to  the 
value  of  all  land  within  each  state,  granted  to  or  surveyed 
lor  any  person,  as  such  land,  and  the  buildings  and  improve-' 
ments  thereon,  shall  be  estimated,  according  to  such  mode 
as  the  United  States  in  Congress  assembled  shall,  from  time 
to  time,  direct  and  appoint.  The  taxes  for  paying  that  pro- 
portion shall  be  laid  and  levied  by  the  authority  and  direc- 
tion of  the  legislatures  of  the  several  states  within  the  time 
agreed  upon  by  the  United  States  in  Congress  assembled. 

Art.  IX.  <^  1.  The  United  States  in  Congress  assembled 
shall  have  the  sole  and  exclusive  right  and  power  of  deter- 
mining on  peace  and  war,  except  in  the  cases  mentioned  in 
the  sixth  article ;  of  sending  and  receiving  ambassadors , 
entering  into  treaties  and  alliances,  provided  that  no  treaty 
of  commerce  shall  be  made  whereby  the  legislative  power 
of  the  respective  states  shall  be  restrained  from  imposing 
such  imposts  and  duties  on  foreigners  as  their  own  people 
are  subjected  to,  or  from  prohibiting  the  exportation  or  im- 
portation of  any  species  of  goods  or  commodities  whatsoev- 
er ;  of  establishing  rules  for  deciding  in  all  cases  what  cap- 
tures on  land  or  water  shall  be  legal,  and  in  what  manner 
prizes  taken  by  land  or  naval  forces  in  the  service  of  the 
Ilnited  States  shall  be  divided  or  appropriated  ;  of  granting 
letters  of  marque  and  reprisal  in  times  of  peace  ;  appointing 
courts  for  the  trial  of  piracies  and  felonies  committed  on  the 
high  seas  ;  and  establishing  courts  for  receiving  and  deter- 
mining finally  appeals  in  all  cases  of  captures  :  provided  that 
no  member  of  Congress  shall  bL  appointed  a  judge  of  any 
of  the  said  courts. 

<5)  2.  The  United  States  in  Congress  assembled  shall  alsa 
be  the  last  resort  on  appeal  in  all  disputes  and  differences 
now  subsisting,  or  that  hereafter  may  arise  between  two  or 
more  states  concerning  boundary,  jurisdiction,  or  any  other 
cause  whatever  ;  which  authority  shall  always  be  exercised 
in  the  manner  following  :  Whenever  the  legislative  or  ex- 
ecutive authority,  or  lawful  agent  of  any  state  in  controversy 
with  another,  shall  present  a  petition  to  Congress,  stating 
the  matter  in  question,  and  praying  for  a  hearing,  notice 
thereof  shall  be  given  by  order  of  Congress  to  the  legisla- 
tive or  executive  authority  of  the  other  state  in  controver- 
sy, and  a  day  assigned  for  the  appearance  of  the  parties  by 
the/r  lawful  agents,  who  shall  then  be  directed  to  appoint 
Dd 


346  APPENDIX. 

by  joint  consent  commissioners  or  judges  to  constitute  a 
court  for  hearing  and  determining  the  matter  in  question  ; 
but  if  they  cannot  agree,  Congress  shall  name  three  persons 
out  of  each  of  the  United  States,  and  from  the  list  of  such 
persons  each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  number  shall  be  reduced  to  thir- 
teen ;  and  from  that  number  not  less  than  seven,  nor  more 
than  nine  names,  as  Congress  shall  direct,  shall,  in  the 
presence  of  Congress,  be  drawn  out  by  lot ;  and  the  persons 
whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall 
be  commissioners  or  judges,  to  hear  and  finally  determine 
the  controversy,  so  always  as  that  a  major  part  of  the  judg- 
es who  shall  hear  the  cause  shall  agree  in  the  determina- 
tion ;  and  if  either  party  shall  negject  to  attend  at  the  day 
appointed,  without  showing  reasons  which  Congress  shall 
judge  sufficient,  or,  being  present,  shall  refuse  to  strike,  the 
Congress  shall  proceed  to  nominate  tnree  persons  out  of 
each  state,  and  the  secretary  of  Congress  shall  strike  in  be- 
half of  such  party  absent  or  refusing  ;  and  the  judgment  and 
sentence  of  the  court,  to  be  appointed  in  the  manner  before 
prescribed,  shall  be  final  and  conclusive  ;  and  if  any  of  the 
parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  to  appear  or  defend  their  claim  or  cause,  the  court  shall, 
nevertheless,  proceed  to  pronounce  sentence  or  judgment, 
which  shall  in  like  manner  be  final  and  decisive  ;  the  judg- 
ment or  sentence  and  other  proceedings  being  in  either  case 
transmitted  to  Congress,  and  lodged  among  the  acts  of  Con- 
gress, for  the  security  of  the  parties  concerned :  provided 
that  every  commissioner,  before  he  sits  in  judgment,  shall 
take  an  oath,  to  be  administered  by  one  of  the  judges  of  the 
Supreme  or  Superior  Court  of  the  state  where  the  cause  shall 
be  tried,  "  well  and  truly  to  hear  and  determine  the  matter 
in  question,  according  to  the  best  of  his  judgment,  without 
favour,  aflfection,  or  hope  of  reward."  Provided,  also,  that 
no  state  shall  be  deprived  of  territory  for  the  benefit  of  the 
United  States. 

<^  3.  All  controversies  concerning  the  private  right  of  soil 
claimed  under  the  diflferent  grants  of  two  or  more  states, 
whose  jurisdictions,  as  they  may  respect  such  lands,  and 
the  states  which  passed  such  grants,  are  adjusted,  the  said 
grants,  or  either  of  them,  being,  at  the  same  time,  claimed  tc 
have  originated  antecedent  to  such  settlement  of  jurisdic 
Hon,  shall,  on  the  petition  of  either  party  to  the  Congress  o 
the  United  States,  be  finally  detormmed,  as  near  as  may  be 


APPENDIX.  S47 

m  the  same  manner  as  is  before  prescribed  for  deciding  dis- 
putes respecting  territorial  jurisdiction  between  different 
states. 

<^  4.  The  United  States  in  Congress  assencibled  shall  alsc 
have  the  sole  and  exclusive  right  and  power  of  regulating 
the  alloy  and  value  of  coin  struck  by  their  own  authority, 
or  by  that  of  the  respective  states  ;  fixing  the  standard  of 
weights  and  measures  throughout  the  United  States  ;  regu 
lating  the  trade  and  managing  all  affairs  with  the  Indians, 
not  members  of  any  ot  the  states  :  provided  that  the  legis- 
lative right  of  any  state  within  its  own  limits  be  not  infrin- 
ged or  violated  ;  establishing  and  regulating  postoffices 
from  one  state  to  another,  throughout  all  the  United  States, 
and  exacting  such  postage  on  the  papers  passing  throngii 
the.same  as  may  be  requisite  to  defray  the  expenses  of  the 
said  office ;  appointing  all  officers  of  the  land-forces  in  the 
service  of  the  United  States,  excepting  regimental  officers  ; 
appointing  all  the  officers  of  the  naval  forces,  and  commis- 
sioning all  officers  whatever  in  the  service  of  the  United 
States  ;  making  rules  for  the  government  and  regulation 
of  the  said  land  and  naval  forces,  and  directing  their  opera- 
ions. 

^  5.  The  United  States  in  Congress  assembled  shall  have 
•-.uthority  to  appoint  a  committee,  to  sit  in  the  recess  of 
'congress,  to  be  denominated  A  Committee  of  the  States,  and 
U)  consist  of  one  delegate  from  each  state ;  and  to  appoint 
such  other  committees  and  civil  officers  as  may  be  necessa- 
ry .^or  managing  the  general  affairs  of  the  United  States  un- 
aer  their  direction ;  to  appoint  one  of  their  number  to  pre- 
side, provided  that  no  person  be  allowed  to  serve  in  the  of- 
•iice  of  president  more  than  one  year  in  any  term  of  three 
^ears ;  to  ascertain  the  necessary  sums  of  money  to  ha 
'aised  for  the  service  of  the  United  States,  and  to  appropri- 
ate and  apply  the  same  for  defraying  the  public  expenses  ; 
to  borrow  money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  every  half  year  to  the  respective  states 
an  account  of  the  sums  of  money  so  borrowed  or  emitted  ; 
u)  build  and  equip  a  navy  ;  to  agree  upon  the  number  of 
vand-forces,  and  to  make  requisitions  from  each  s-tate  for  its 
j^uota,  in  proportion  to  the  number  of  white  inhabitants  in 
juch  state,  which  requisition  shall  be  binding ;  and  there- 
jpon  the  Legislature  of  each  state  shall  appoint  the  regiment- 
al officers,  raise  the  men,  and  clothe,  arm,  and  equip  them 
in  a  soldierlike  manner,  at  the  expense  of  the  United  States ; 


348  APPENDIX. 

and  the  oflicers  and  men  so  clothed,  armed,  and  equipped, 
shall  march  to  the  place  appointed,  and  within  the  time 
agreed  on  by  the  United  States  in  Congress  assembled  ;  but 
if  the  United  States  in  Congress  assembled  shall,  on  consid- 
eration of  circumstances,  judge  proper  that  any  state  should 
not  raise  men,  or  should  raise  a  smaller  number  than  its 
({uota,  and  that  any  other  state  should  raise  a  greater  num- 
ber of  men  than  the  quota  thereof,  such  extra  number  shall 
be  raised,  officered,  clothed,  armed,  and  equipped  in  the 
same  manner  as  the  quota  of  such  state,  unless  the  Legisla- 
ture of  such  state  shall  judge  that  such  extra  number  can- 
not be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such 
extra  number  as  they  judge  can  be  safely  spared  ;  and  the 
officers  and  men  so  clothed  armed,  and  equipped,  shall 
march  to  the  place  appointed,  and  within  the  time  agreed  on 
by  the  United  States  in  Congress  assembled. 

^  6.  The  United  States  in  Congress  assembled  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  reprisal 
ill  time  of  peace,  nor  enter  into  any  treaties  or  alliances, 
i'«or  coin  money,  nor  regulate  the  value  thereof,  nor  ascer- 
tain the  sums  and  expenses  necessary  for  the  defence  and 
welfare  of  the  United  States,  or  any  of  them,  nor  emit  bills, 
nor  borrow  money  on  the  credit  of  the  United  States,  nor 
appropriate  money,  nor  agree  upon  the  number  of  vessels 
of  war  to  be  built  or  purchased,  or  the  number  of  land  or 
sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief 
of  the  army  or  navy,  unless  nine  states  assent  to  the  same  : 
nor  shall  a  question  on  any  other  point,  except  for  adjourn- 
ing from  day  to  day,  be  determined,  unless  by  the  votes  of 
a  majority  of  the  United  States  in  Congress  assembled. 

^  7.  The  Congress  of  the  United  States  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  so  that  no  period  of  adjournment 
be  for  a  longer  duration  than  the  space  of  six  months,  and 
shall  publish  the  journal  of  their  proceedings  monthly,  ex- 
cept such  parts  thereof  relating  to  treaties,  alliances,  or  mil- 
itary operations  as  in  their  judgment  require  secrecy  ;  and 
the  yeas  and  nays  of  the  delegates  of  each  state  on  any 
question  shall  be  entered  on  the  journal,  vv'hen  it  is  desired 
by  any  delegate  ;  and  the  delegates  of  a  state,  or  any  of 
them,  at  his  or  their  request,  shall  be  furnished  with  a  tran- 
script of  the  said  journal,  except  such  parts  as  are  above 
excepted;  to  lay  before  the  legislatures  of  the  several  states. 


APPENDIX.  349 

Art.  X.  The  Comnittee  of  the  States,  or  any  nine  ofthem, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress, 
such  of  tlie  powers  of  Congress  as  the  United  States  in 
Congress  assembled,  by  the  consent  of  nine  states,  shall 
froni  time  to  time  thinic  expedient  to  vest  tliem  with  ;  pro- 
.  fided  that  no  power  be  delegated  to  the  said  committee,  for 
the  exercise  of  which,  by  the  Articles  of  Confederation,  the 
voice  of  nine  states,  in  the  Congress  of  the  United  States 
assembled,  is  requisite. 

Art.  XL  Canada,  acceding  to  this  confederation,  and  join- 
ing in  the  measures  of  the  United  States,  shall  be  admitted 
into,  and  entitled  to  all  the  advantages  of  this  Union  ;  but  no 
other  colony  shall  be  admitted  into  the  same,  unless  such 
admission  be  agreed  to  by  nine  states. 

Art.  XII.  All  bills  of  credit  emitted,  money  borrowed,  and 
debts  contracted  by,  or  under  the  authority  of  Congress,  be- 
fore the  assembling  of  the  United  States,  in  pursuance  of 
the  present  confederation,  shall  be  deemed  and  considered 
as  a  charge  against  the  United  States,  for  payment  and  sat- 
isfaction whereof  the  said  United  States  and  the  public  faith 
are  hereby  solemnly  pledged. 

Art.  XIII.  Every  state  shall  abide  by  the  determinations 
of  the  United  States  in  Congress  assembled,  in  all  questions 
which  by  this  confederation  are  submitted  to  them.  And 
the  articles  of  this  confederation  shall  be  inviolably  observed 
by  every  state,  and  the  Union  shall  be  perpetual ;  nor  shall 
any  alteration  at  any  time  hereafter  be  made  in  any  of 
them,  unless  such  alteration  be  agreed  to  in  a  Congress  of 
the  United  States,  and  be  afterward  confirmed  by  the  legis 
latures  of  every  state. 

AiVD  v/HEREAS  it  hath  pleased  the  great  Governor  of  the 
world  to  incline  the  hearts  of  the  legislatures  we  respect- 
ively represent  in  Congress  to  approve  of,  and  to  authorize 
us  to  ratify  the  said  Articles  of  Confederation  and  perpetual 
Union,  Kxovv  ye,  that  we,  the  undersigned  delegates,  by 
virtue  of  the  power  and  authority  to  us  given  for  that  pur- 
pose, do,  by  these  presents,  in  the  name  and  behalf  of  ot]i 
respective  constituents,  fully  and  entirely  ratify  and  confirm 
each  and  every  of  the  saLd  Articles  of  Confederation  and  per- 
petual Union,  and  all  and  singular  the  matters  and  things 
therein  contained.  And  we  do  farther  solemnly  plight  and 
engage  the  faith  of  our  respective  constituents,  that  they 
shall  abide  by  the  determinations  of  the  United  States  in 
Congress  assembled,  in  all  ouestions  which  by  the  said  con- 


350 


APPENDIX. 


federation  are  subniitted  to  them  ;  and  tliat  tfic  artic^(*« 
thereof  shall  be  inviolably  observed  by  the  states  we  re- 
spectively represent,  and  that  the  Union  shall  be  pcrpetnai. 
Lv  vviTxXEss  whereof,  we  have  hereunto  set  our  hands  in 
Congress. 
Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the  9th 

day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  third 

year  of  the  Independence  of  America. 
Tvj       xj         ,  •  i  Josiah  Bartlett, 

New-Hampshire.       \  j^,,„  Wentworth,  Jun. 

^John  Hancock, 
Samuel  Adams, 


Massachusetts  Bay  J  ElbridgeGerry, 


Rhode  Island,  &c. 


Connecticut. 


New- York. 


New-Jersey. 


Pennsylvania 


Delaware. 


Maryland. 


Virginia 


Francis  Dana, 
I  James  Lovell, 
\.  Samuel  Holten. 
i  William  Ellery, 

<  Henry  Merchant. 
(  John  Collins. 
/'Roger  Sherman, 

j  Samuel  Huntington, 

<  Oliver  Wolcott, 
j  Titus  Hosmer, 

V  Andrew  Adams. 
I' James  Duane, 

}  Francis  I^ewis, 
[  William  Duer, 
I  Governeur  Morris. 
^  John  Witherspoon, 
i  Nathaniel  Scudder. 
/'Robert  Morris, 
I  Daniel  Roberdieu, 

<  Jonathan  Bayard  Smith, 
j  Wilham  Clingan, 

V  Joseph  Reed. 

(  Thomas  M'Kean, 

<  John  Dickinson, 

/  Nicholas  Vandyke. 
(  John  Hanson, 
\  Daniel  Carrol. 
/-Richard  Henry  Lee. 
I  John  Banister, 
<;  Thomas  Adams, 
I  John  Harvey, 
iFr.-^ncis  Lifehtfoot  Lee. 


APPENDIX.  351 

(  John  Penn, 
North  Carolina.         <  Cornelius  Harnett, 

(  John  Williams. 

(  Henry  Laurens, 

I  William  Henry  Drayton, 
South  Carolina.        <(  John  Matthews, 

I  Richard  Hutson, 

V  Thomas  Heyward,  Jun. 

i  John  Walton, 
Georgia.  <  Edward  Taliafero, 

(  Edward  Longworthy. 


C,  p.  38. 

CONSTITUTION  OF  THE  UNITED  STATES. 

The  Constitution  framed  for  the  United  States  of  America,  by 
a  Convention  of  Deputies  from  the  States  of  New- Hampshire , 
Massachusetts,  Connecticut,  New-York,  New- Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia,  North  Carolina, 
South  Carolina,  and  Georgia,  at  a  session  begun  May  25, 
2nd  ended  September  17,  1787. 

We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  Union,  establish  justice,  ensure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the  gen- 
eral welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  our  posterity,  do  ordain  and  establish  this  Constitution 
for  the  United  States  of  America. 

ARTICLE  I. 

SECTION  I. 

All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Sen- 
ate and  House  of  Representatives. 

SECTION  II. 

1.  The  House  of  Representatives  shall  consist  of  mem- 
bers chosen  every  second  year,  by  the  people  of  the  several 
states  ;  and  the  electors  in  each  state  shall  have  the  qualifi- 
cations requisite  for  electors  of  the  most  numerous  branch 
of  the  State  Legislature. 

3.  No  person  shall  be  a  representative  who  shall  not  have 


352  APPENDIX. 

attrtined  to  the  a^e  of  tvventy-nve  years,  and  been  seven 
years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  state  in  which  he 
shall  be  chosen. 

3.  Representatives  anil  direct  taxes  shall  be  apportioned 
among  the  several  states  which  may  be  included  within 
this.  Union,  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  term  of 
years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  persons.  The  actual  enumeration  shall  be  made  with- 
in three  years  after  the  first  meeting  of  the  Congress  of  the 
United  States ;  and,  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  representatives  shall  not  exceed  one  for  every 
thirty  thousand  ;  but  each  state  shall  have  at  least  one  rep- 
resentative ;  and,  until  such  enumeration  shall  be  made,  the 
State  of  New-Hampshire  shall  be  entitled  to  choose  three ; 
Massachusetts  eight ;  Rhode  Island  and  Providence  Planta- 
tions one  ;  Connecticut  live  ;  New- York  six  ;  New- Jersey 
four ;  Pennsylvania  eight ;  Delaware  one  ;  Maryland  six ; 
Virginia  ten  ;  North  Carolina  five  ;  South  Carolina  five  ;  and 
Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from  any 
state,  the  executive  authority  thereof  shall  issue  writs  of 
election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their  speak- 
er and  other  officers,  and  shall  have  the  sole  power  of  im- 
peachment 

SECTION  III. 

1.  The  Senate  of  the  United  States  shall  be  composed  of 
two  senators  from  each  state,  chosen  by  the  Legislature 
thereof,  for  six  years ;  and  each  senator  shall  have  one 
vote. 

2.  Immediately  after  they  shall  be  assembled,  in  conse- 
quence of  the  first  election,  they  shall  be  divided,  as  equally 
as  may  be,  into  three  classes.  The  seats  of  the  senators 
of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year ;  of  the  second  class,  at  the  expiration  of  the 
fourth  year  ;  and  of  the  third  class,  at  the  expiration  of  the 
sixth  year  :  so  that  one  third  may  be  chosen  every  second 
year.  And  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  Leiii&^ature  of  any  state,  the  execu- 


APPENDIX.  353 

tive  thereof  may  make  temporary  appointments  until  the 
next  meeting  of  the  Legislature,  which  shall  then  fill  such 
vacancies. 

3.  No  person  shall  be  a  senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a  cit- 
izen of  the  United  States,  and  who  shall  not,  when  elect- 
ed, be  an  inhabitant  of  that  state  foe  which  he  shall  be 
chosen. 

4.  The  Vice-president  of  the  United  States  shall  be  Pres 
ident  of  the  Senate,  but  shall  have  no  vote  unless  they  bo 
equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also 
a  president  pro-tempore  in  the  absence  of  the  Vice-president, 
or  when  he  shall  exercise  the  office  of  President  of  the  Uni 
ted  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all  im 
peachments.  When  sitting  for  that  purpose,  they  shall  be 
on  oath  or  affirmation.  When  the  President  of  the  United 
States  is  tried,  the  chief- justice  shall  preside ;  and  no  per- 
son shall  be  convicted  without  the  concurrence  of  two 
thirds  of  the  members  present. 

7.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
farther  than  to  removal  from  office;  and  disqualification  to 
hold  and  enjoy  any  office  of  honour,  trust,  or  profit  under 
the  United  States.  But  the  party  convicted  shall,  never- 
theless, be  liable  and  subject  to  indictment,  trial,  judgment, 
and  punishment,  according  to  law. 

SECTION  IV. 

1.  The  times,  places,  and  manner  of  holding  elections  for 
senators  and  representatives  shall  be  prescribed  in  each 
state  by  the  Legislature  thereof;  but  the  Congress  may,  at 
any  time,  by  law,  make  or  alter  such  regulations,  except  as 
to  the  places  of  choosing  senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year  ;  and  such  meeting  shall  be  on  the  first  Monday  iii 
December,  unless  they  shall,  by  law,  appoint  a  diffurcni 
day, 

SECTION  v. 

1.  Each  house  shall  be  the  judge  of  the  elections,  returns, 
and  qualifications  of  its  own  members  ;  and  a  majority  of 
each  shall  constitute  a  quorum  to  do  business  ;  but  a  small- 
er number  may  adjourn  froni  day  to  day,  and  may  be  au- 


354  APPENDIX. 

thorized  to  compsl  the  attendance  of  absent  members,  m 
such  manner  and  under  such  penalties  as  each  house  maj 
provide. 

2.  Each  house  may  determine  the  rules  of  its  proceed- 
ings  ;  punish  its  members  for  disorderly  behaviour ;  and, 
with  the  concurrence  of  two  thirds,  expel  a  member. 

3.  Each  house  shall  keep  a  journal  of  its  proceedings,  and, 
from  time  to  time,  publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  secrecy  ;  and  the  yeas  and 
nays  of  the  members  of  either  house  on  any  question  shall, 
at  the  desire  of  one  fifth  of  those  present,  be  entered  on  the 
journal. 

4.  Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that  in  which  the  two 
houses  shall  be  sitting. 

SECTION  VI. 

1.  The  senators  and  representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States.  They  shall, 
in  all  cases  except  treason,  felony,  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the 
session  of  their  respective  houses,  and  in  going  to  and  re- 
turning from  the  same :  for  any  speech  or  debate  in  either 
house,  they  shall  not  be  questioned  in  any  other  place. 

2.  No  senator  or  representative  shall,  during  the  time  for 
which  he  was  elected,  be  appointed  to  any  civil  office,  under 
the  authority  of  the  United  States,  which  shall  have  been 
created,  or  the  emoluments  of  which  shall  have  been  in- 
creased, during  such  time ;  and  no  person  holding  any  of- 
fice under  the  United  States  shall  be  a  member  of  either 
house  during  his  continuance  in  office. 

SECTION  VII. 

1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives  ;  but  the  Senate  shall  propose  or 
concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of  Rep- 
resentatives and  the  Senate  shaU,  before  it  become  a  law, 
be  presented  to  the  President  of  the  United  States.  If  he 
approve  it,  he  shall  sign  it ;  but  if  not,  he  shall  return  it,  with 
his  objections,  to  that  house  in  which  it  shall  have  origina- 
ted, who  shall  enter  the  objections  at  large  on  their  journal, 


APPENDIX.  355 

and  proceed  to  reconsider  it.  If,  after  such  reconsidera- 
tion, two  thirds  of  that  house  shall  agree  to  pass  the  bill,  it 
shall  be  sent,  together  witn  the  objections,  to  the  other 
house,  by  which  it  shall  likewise  be  reconsidered  ;  and,  il 
approved  by  two  thirds  of  that  house,  it  shall  become  a  law. 
But  in  all  such  cases  the  votes  of  both  houses  shall  be  de- 
termined by  yeas  and  nays  ;  and  the  names  of  the  persons 
voting  for  and  against  the  bill  shall  be  entered  on  the  jour- 
nal of  each  house  respectively.  If  any  bill  shall  not  be  re- 
turned by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be 
a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Con- 
gress, by  their  adjournment,  prevent  its  return  ;  in  which 
case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  concur- 
rence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment),  shall  be 
presented  to  the  President  of  the  United  States,  and,  be- 
fore the  same  shall  take  effect,  be  approved  by  him ;  or,  be- 
ing disapproved  by  him,  shall  be  repassed  by  two  thirds  of 
both  houses,  according  to  the  rules  and  limitations  prescribed 
in  the  case  of  a  bill. 

SECTION    VIII. 

The  Congress  shall  have  power, 

1 .  To  lay  and  collect  taxes,  duties,  imposts,  and  excises, 
to  pay  the  debts  and  provide  for  the  common  defence  and 
general  warfare  of  the  United  States ;  but  all  duties,  im- 
posts, and  excises  shall  be  uniform  throughout  the  United 
States : 

2.  To  borrow  money  on  the  credit  of  the  United  States  : 

3.  To  regulate  commerce  with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes  : 

4.  To  establish  a  uniform  rule  of  naturalization,  and  uni- 
form laws  on  the  subject  of  bankruptcies  throughout  the 
United  States : 

5.  To  coin  money,  to  regulate  the  value  thereof,  and  of  for- 
eign coin,  and  fix  the  standard  of  weights  and  measures  : 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States  : 

7.  To  establish  postoffices  and  postroads  : 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing,  for  limited  times,  to  authors  and  inventors,  the 
exclusive  right  tc  theii  respective  writings  and  discoveries : 


356  At^PENDIX. 

9.  To  constitute  tribunals  inferior  to  the  supreme  court: 

10.  To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations  : 

11.  To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and  water : 

12.  To  raise  and  support  armies ;  but  no  appropriation 
of  money  for  that  use  shall  be  for  a  longer  term  than  two 
years : 

^3.  To  provide  and  maintain  a  navy  : 

14.  To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces  : 

15.  To  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel. inva- 
sions : 

16.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States,  reserving  to 
the  states  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia  according  to  the  disci- 
pline prescribed  by  Congress. 

17.  To  exercise  exclusive  legislation,  m  all  cases  whatso- 
ever, over  such  district  (not  exceed mg  ten  miles  square)  as 
may,  by  cession  of  particular  states,  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the  United 
States  ;  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  Legislature  of  the  state  in 
which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dockyards,  and  other  needful  buildings  ;  and, 

18.  To  make  all  laws  which  shall  be  necessary  and  prop- 
er for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government 
of  the  United  States,  or  in  any  department  or  office  thereof  - 

SECTION    IX. 

I.  The  migration  or  importation  of  such  persons  as  any 
of  the  states  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  Congress  prior  to  the  year  one 
thousand  eight  hundred  and  eight ;  but  a  tax  or  duty  may 

/be  imposed  on  such  importation,  not  exceeding  ten  dollars 

j  for  each  person. 

^     2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended,  unless  when,  in  cases  of  rebellion  or  invasion,  the 
public  safety  may  require  it. 
3.  No  bill  of  attainder  or  ex  jiost  fanin  law  shall  bo  passed. 


APPENDIX.  357 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  herein  before  di- 
rected to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  fiou) 
iny  state. 

6.  No  preference  shall  be  given  by  any  regulation  of  com- 
nerce  or  revenue  to  the  ports  of  one  state  over  those  of  an- 
)ther :  nor  shall  vessels  bound  to,  or  from  one  state,  be 
ol)liged  to  enter,  clear,  or  pay  duties  in  another. 

7.  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law  ;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. 

8.  No  title  of  nobility  shall  be  granted  by  the  United 
States  ;  and  no  person  holding  any  office  of  profit  or  trust 
under  them  shall,  without  the  consent  of  the  Congress,  ac- 
cept of  any  present,  emolument,  office,  or  title  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  state. 

SECTION    X. 

1.  No  state  shall  enter  into  any  treaty,  alliance,  or  con 
federation  ;  grant  letters  of  marque  and  reprisal ;  com  mon- 
ey ;  emit  bills  of  credit ;  make  anything  but  gold  and  silver 
coin  a  tender  in  payment  of  debts  ;  pass  any  bill  of  attain- 
der, ex  post  facto  law,  or  law  impairing  the  obligation  of  con- 
tracts ;  or  grant  any  title  of  nobility. 

2.  No  state  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws ;  and  the  nett  produce  of  all  duties  and  imposts, 
laid  by  any  state  on  imports  or  exports,  shall  be  for  the  use 
of  the  treasury  of  the  United  States  ;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress. 

3.  No  state  shall,  without  the  consent  of  the  Congress, 
lay  any  duty  on  tonnage,  keep  troops  or  ships  of  war  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  another 
state,  or  with  a  foreign  power,  or  engage  in  war,  unless  ac- 
tually invaded,  or  in  such  imminent  danger  as  will  not  ad  • 
mit  of  delay. 

ARTICLE  II. 

SECTION    I. 

1.  The  executive  power  shall  be  vested  in  a  President  of 
tb.-.  United  States  of  America.     He  shall  hold  his  office  du- 


358  APPENDIX. 

ring  the  term  of  four  years,  and,  together  "with  the  Vice- 
president,  chosen  for  the  same  term,  be  elected  as  follows  : 

2.  Each  state  shall  appoint,  in  such  manner  as  the  Legis- 
lature thereof  may  direct,  a  number  of  electors,  equal  to 
the  whole  number  of  senators  and  representatives  to  which 
the  state  may  be  entitled  in  the  Congress  ;  but  no  senator 
or  representative,  or  person  holding  any  office  of  trust  or 
profit  under  the  United  States,  shall  be  appointed  an  elector. 

3.  The  electors  shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  two  persons,  one  of  whom  at  least  shall 
not  be  an  inhabitant  of  the  same  state  with  themselves. 
And  they  shall  make  a  list  of  all  the  persons  voted  for,  and 
of  the  number  of  votes  for  each  ;  which  list  they  shall  sign 
and  certify,  and  transmit  sealed  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  President  of  the  Sen- 
ate. The  President  of  the  Senate  shall,  in  the  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the  cer- 
tificates, and  the  votes  shall  then  be  counted.  The  person 
naving  the  greatest  number  of  votes  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  elect- 
ors appointed  ;  and  if  there  be  more  than  one  who  have 
such  majority,  and  have  an  equal  number  of  votes,  then  the 
House  of  Representatives  shall  immediately  choose  by  bal- 
lot one  of  them  for  President ;  and  if  no  person  have  a  ma- 
jority, then  from  the  five  highest  on  the  list  the  said  House 
shall  in  like  manner  choose  the  President.  But  in  choosii^ 
the  President,  the  votes  shall  be  taken  by  states,  the  repre- 
sentation from  each  state  having  one  vote :  a  quorum  foi 
this  purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  states,  and  a  majority  of  all  the  states 
shall  be  necessary  to  a  choice.  In  every  case,  after  the 
choice  of  the  President,  the  person  having  the  greatest  num- 
ber of  votes  of  the  electors  shall  be  the  Vice-president.  13ul 
if  there  should  remain  two  or  more  who  have  equal  votes, 
the  Senate  shall  choose  from  them  by  ballot  the  Vice-presi- 
dent. 

4.  The  Congress  may  determine  the  time  of  choosing  the 
electors,  and  the  day  on  which  they  shall  give  their  votes  ; 
which  day  shall  be  the  same  throughout  the  United  States. 

5.  No  person,  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of  this 
Constitution,  shall  be  eligible  to  the  office  of  President ; 
neither  shall  any  person  be  eligible  to  that  office  who  shaL 


APPENDIX.  i^59 

not  have  attained  to  the  age  of  thirty-five  years,  and  been 
fourteen  years  a  resident  within  the  United  States. 

6  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inabihty  to  discharge  the  powers 
and  duties  of  the  said  office,  the  same  shall  devolve  on  the 
Vice-president ;  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both  of 
tlie  President  and  Vice-president,  declaring  what  officer 
shall  then  act  as  President,  and  such  officer  shall  act  ac- 
cordingly, until  the  disability  be  removed,  or  a  President  be 
elected. 

7.  The  President  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  increased 
nor  diminished  during  the  period  for  which  he  shall  have 
been  elected,  and  he  shall  not  receive  within  that  period  any 
other  emolument  from  the  United  States,  or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
take  the  following  oath  or  affirmation  : 

"  I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully  exe- 
cute  the  office  of  President  of  the  United  States,  and  will, 
to  the  best  of  my  ability,  preserve,  protect,  and  defend  the 
Constitution  of  the  United  States." 

SECTION    II. 

1.  The  President  shall  be  commander-in-chief  of  the  army 
and  navy  of  the  United  States,  and  of  the  militia  of  the  sev- 
eral states  when  called  into  the  actual  service  of  the  United 
States  ;  he  may  require  the  opinion,  in  writing,  of  the  prin- 
cipal officers  in  each  of  the  executive  departments,  upon 
any  subject  relating  to  the  duties  of  their  respective  offices, 
and  he  shall  have  power  to  grant  reprieves  and  pardons  for 
offences  against  the  United  States,  except  in  cases  of  im- 
peachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two  thirds  of 
the  senators  present  concur  ;  and  he  shall  nominate,  and  by 
and  with  the  advice  and  consent  of  the  Senate,  shall  appoint 
ambassadors,  other  public  ministers  and  consuls,  judges  of 
the  Supreme  Court,  and  all  other  officers  of  the  United 
States  whose  appointments  are  not  herein  otherwise  provi- 
ded for,  and  which  shall  be  established  by  law  ;  but  the 
Congress  may  by  law  vest  the  appointment  of  such  infeiior 
officers  as  they  think  proper  in  the  President  alone,  in  thfi 

urts  of  law,  or  in  the  heads  of  the  departments. 


360  APPENDIX. 

3.  The  President  shall  have  power  to  fill  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing comniissions  which  shall  expire  at  the  end  of  their  next 
session. 

SECTION    III. 

He  shall,  from  time  to  time,  give  to  the  Congress  in 
formation  of  the  state  of  the  Union,  and  recommend  to  theii 
consideration  such  measures  as  he  shall  judge  necessarj 
and  expedient;  he  may,  on  extraordinary  occasions,  con- 
vene both  houses,  or  either  of  them,  and,  in  case  of  disa- 
greement between  them  with  respect  to  the  lime  of  ad- 
journment, he  may  adjourn  them  to  such  time  as  he  shall 
think  proper ;  he  shall  receive  ambassadors  and  other  pub- 
lic ministers  ;  he  shall  take  care  that  the  laws  be  faithfully 
executed,  and  shall  commission  all  the  officers  of  the  Uni- 
ted States. 

SECTION    IV. 

The  President,  Vice-president,  and  all  civil  officers  of  the 
United  States,  shall  be  removed  from  office  on  impeachment 
for,  and  conviction  of  treason,  bribery,  or  other  high  crimes 
and  misdemeanors. 

ARTICLE  III. 

SECTION    I. 

The  judicial  power  of  the  United  States  shall  be  vested 
in  one  supreme  court,  and  in  such  inferior  courts  as  the 
Congress  may,  from  time  to  time,  ordain  and  establish. 
The  judges,  both  of  the  supreme  and  inferior  courts,  shall 
hold  their  offices  during  good  behaviour,  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation,  which  shall 
not  be  diminished  during  their  continuance  in  office. 

SECTION    II. 

I.  The  judicial  power  shall  extend  to  all  cases  in  law 
nnd  equity  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority ;  to  all  cases  affecting  ambassadors ; 
other  public  ministers,  and  consuls  ;  to  all  cases  of  a^'mi- 
ralty  and  maritime  jurisdiction  ;  to  controversies  to  which 
the  United  States  shall  be  a  party,  to  controversies  between 
two  or  more  states,  between  a  state  and  citizens  of  anothei 
state,  between  citizens  of  different  states,  between  citizens 


APPENDIX.  361 

It  the  same  state  claiming  lands  under  grants  of  different 
states,  and  between  a  state,  or  the  citizens  thereof  and  for- 
eign states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  mm- 
■sters,  and  consuls,  and  those  in  which  a  state  shall  be  a 
oarty,  the^Supreme  Court  shall  have  original  jurisdiction. 
m  all  the  other  cases  before  mentioned,  the  Supreme  Court 
rhall  have  appellate  jurisdiction,  both  as  to  law  and  fact, 
'vith  such  exceptions,  and  under  such  regulations,  as  the 
Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury,  and  such  trial  shall  be  held  in  the 
state  where  the  said  crimes  shall  have  been  committed  ;  but 
when  not  committed  within  any  state,  the  trial  shall  be  at 
such  place  or  places  as  the  Congress  may  by  law  have  di- 
rected. 

SECTION    III. 

1.  Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  convicted 
of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason  ;  but  no  attainder  of  treason  shall  work 
corruption  of  blood  or  forfeiture,  except  during  the  life  of 
♦he  person  attainted. 

ARTICLE  IV. 


Full  faith  and  credit  shall  be  given,  in  each  state,  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
state.  And  the  Congress  may,  by  penal  laws,  prescribe  th(5 
manner  in  which  such  acts,  records,  and  proceedings  shall 
he  proved,  and  the  effect  thereof. 

SECTION    II. 

1.  The  citizens  of  each  state  shall  be  entitled  to  all  tha 
privileges  and  immunities  of  citizens  in  the  several  states. 

2.  A  person  charged  in  any  state  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and  be  found  in  an- 
other state,  shall,  on  the  demand  of  the  executive  authority 
of  the  state  from  which  he  fled,  be  delivered  up,  to  be  remo- 
•red  to  the  state  having  jurisdiction  of  the  crime 

K  E 


362  APPENDIX. 

3.  No  person,  held  to  service  or  labour  in  one  state  unJer 
the  law  thereof,  escaping  into  another,  sliall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labour ;  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labour  may  be  due. 

SECTION    III.  * 

1.  New  states  may  be  admitted  by  the  Congress  into  this 
Union  ;  but  no  new  state  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  state  ;  nor  any  state  be  formed 
by  the  junction  of  two  or  more  states,  or  parts  of  states, 
without  the  consent  of  the  legislatures  of  the  states  con- 
cerned, as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or 
other  property  beloncring  to  the  United  States  ;  and  nothing 
in  this  Constitution  snail  be  so  construed  as  to  prejudice 
any  claims  of  the  United  States,  or  of  any  particular  state. 

SECTION   IV. 

The  United  States  shall  guaranty  to  every  state  in  this 
Union  a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion ;  and  on  application  of  the 
Legislature,  or  of  the  executive  (when  the  Legislature  can- 
not be  convened),  against  domestic  violence. 

ARTICLE  V. 

The  Congress,  whenever  two  thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  legislatures  of  two 
thirds  of  the  several  states,  shall  call  a  convention  foi 
proposing  amendments  ;  which,  in  either  case,  shall  be  val- 
id to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  legislatures  of  three  fourths  of  the  sev- 
eral states,  or  by  conventions  in  three  fourths  thereof,  as 
the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  Congress  :  Provided  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight,  shall  in  any  manner  affect  the  first  and  fourth  clauses 
in  the  ninth  section  of  the  first  article ;  and  that  no  state, 
without  its  consent,  shall  be  deprived  of  its  equal  suflfrage 
in  the  Senate 


APPENmx.  363 

ARTICLE  VI. 

1.  All  debts  contracted,  and  engagements  entered  into 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 
the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
w'hich  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in 
the  Constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding. 

3.  The  senators  \nd  representatives ,  before  mentioned, 
and  the  members  ol  the  several  state  legislatures,  and  all 
executive  and  judicial  officers,  both  of  the  United  States  and 
of  the  several  states,  shall  be  bound,  by  oath  or  affirmation, 
to  support  this  Constitution  ;  but  no  religious  test  shall  ever 
be  required  as  a  qualification  to  any  office  or  public  trust  un- 
der the  United  States. 

ARTICLE  VII. 
The  ratification  of  the  convention  of  nine  states  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  states  so  ratifying  the  same. 

Done  in  the  Convention  by  the  unanimous  consent  of  the 
states  present,  the  seventeenth  day  of  September,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty- 
seven,  and  of  the  independence  of  the  United  States  of 
America  the  twelfth.  In  witness  whereof,  we  have  sub- 
scribed our  names. 

GEORGE  WASHINGTON,  President, 

and  Delegate  from  Virginia, 

Massachusetts.    \  Ruflj^^^J^g""'"'''""' 

Connecticut.        \  William  Samuel  Johnsor,., 

(  Roger  Sherman. 
New- York.  Alexander  Hamilton. 

/William  Livingston, 


Ne\r-Jersev         J  ^^^^^  Brearley, 
ISQV  jersey.        <  william  Paterso. 

^Jonathan  Dayton. 


364 


APPENDIX. 


Pennsylvania. 


Delaware. 

Maryland. 
Virginia. 
North  Carolina. 

South  Carolina 

Georgia. 
Attest, 


^Benjamin  Franklin, 
Thomas  Mifflin, 
Robert  Morris, 
George  Clymcr, 
Thomas  Fitzsimmons, 
Jared  Ingersol, 
James  Wilson, 
Gouverneur  Morris. 
George  Read, 
Gunning  Bedford,  Jun., 
John  Dickinson, 
Richard  Bassett, 
Jacob  Broom. 
James  M'Henry, 
Daniel  of  St.  Thomas  Jenifer, 
Daniel  Carroll. 

SJohn  Blair, 
James  Madison,  Jun. 
c  William  Blount, 
<  Richard  Dobbs  Spaight, 
(  Hugh  Williamson. 
/"John  Rutledge, 
J  Charles  C.  Pinck'nev, 
\  Charles  Pinckney, 
V  Pierce  Butler. 
(  William  Few, 
I  Abraham  Baldwin. 

William  Jackson,  Secvtinj, 


AMENDMENTS 

The  jollowing  Articles  in  addition  to,  and  amendment  of,  the 
Constitution  of  the  United  States,  having  been  ratified  by  the 
Legislatures  of  nine  Slates,  are  equally  obligatory  with  the 
Constitution  itself 

I.  Congress  shall  make  no  law  respecting  an  establish 
ment  of  religion,  or  prohibiting  the  free  exercise  thereof,  oi 
abridging  the  freedom  of  speech  or  of  the  press ;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances. 

II.  A  well-regulated  militia  being  necessary  to  the  secu- 
rity of  a  free  state,  the  right  of  the  pec  pie  to  keep  and  bea» 
arms  shall  not  be  infringed 


APPENDIX.  365 

III.  No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house,  without  the  consent  of  the  owner ;  nor  in  time 
of  war,  but  in  a  manner  to  be  prescribed  by  law. 

IV.  The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated  ;  and  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or  affirm- 
ation, and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  tilings  to  be  seized. 

V.  No  person  shall  be  held  to  answer  for  a  capital  or  oth- 
erwise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual  service,  in 
time  of  war,  or  public  danger ;  nor  shall  any  person  be  sub- 
ject, for  the  same  offence,  to  be  twice  put  in  jeopardy  of 
life  or  limb ;  nor  shall  be  compelled,  in  any  criminal  case, 
to  be  witness  against  himself;  nor  be  deprived  of  life,  liber- 
ty, or  property,  without  due  process  of  law  ;  nor  shall  pri- 
vate property  be  taken  for  public  use,  without  just  compen- 
sation. 

VI.  In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  aq4  public  trial,  by  an  impartial  jury, 
of  the  state  and  district  wherein  the  crime  shall  have  been 
committed ;  which  district  shall  have  been  previously  as- 
certained by  law ;  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation  ;  to  be  confronted  with  the  witness- 
es against  him  ;  to  have  compulsory  process  for  obtaining 
vvitnesses  in  his  favour ;  and  to  have  the  assistance  of  coun- 
sel for  his  defence. 

VII.  In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved  ;  and  no  fact  tried  by  jury  shall  be  other- 
wise re-examinad  in  any  court  of  the  tJnited  States  than 
according  to  the  rules  of  the  common  law. 

VIII.  Excessive  bail  shall  not  be  required  ;  nor  excessive 
fines  imposed ;  nor  cruel  and  unusual  punishment  inflicted. 

IX.  The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

X.  I'he  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  states,  are  reserved 
to  the  states  respectively,  or  to  the  people. 

XI.  The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  commenced 


3(3(5  APPENDIX. 

or  prosecuted  against  one  of  the  United  Slates  by  citizens 
of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state. 

XII.  The  electors  shall  meet  in  their  respective  states, 
and  vote  by  ballot  for  President  and  Vice-president,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same  state 
with  themselves ;  they  shall  name  in  their  ballots  the  per- 
son voted  for  as  President,  and  in  distinct  ballots  the  per- 
son voted  for  as  Vice-president ;  and  they  shall  make  dis- 
tinct lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-president,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  government  of  the  United  States,  di- 
rected to  the  President  of  the  Senate  ;  the  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates,  and  the  votes  shall 
then  be  counted ;  the  person  having  the  greatest  number  of 
votes  for  President  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  electors  appointed ; 
and  if  no  person  have  such  majority,  then  from  the  persons 
having  the  highest  numbers  not  exceeding  three  on  the  list 
of  those  voted  for  as  President,  tte  House  of  Representa- 
tives shall  choose  immediately,  by  ballot,  the  President. 
But,  in  choosing  the  President,  the  votes  shall  be  taken  by 
states,  the  representation  from  each  state  having  one  vote  ; 
a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two  thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  President  vv^henever 
the  right  of  choice  shall  devolve  upon  them,  before  the  fourth 
day  of  March  next  following,  then  the  Vice-president  shall 
act  as  President,  as  in  the  case  of  the  death  or  other  consti- 
tutional disability  of  the  President.  The  person  having  the 
greatest  number  of  votes  as  Vice-president  shall  be  Vice- 
president,  if  such  number  be  a  majority  of  the  whole  numbei 
of  electors  appointed ;  and  if  no  person  have  a  majority, 
then  from  the  two  highest  numbers  on  the  list  the  Senate 
shall  choose  the  Vice-president :  a  quorum  for  the  purpose 
shall  consist  of  two  thirds  of  the  whole  number  of  senators, 
and  a  majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineligible  to  the  of- 
fice of  President  shall  be  eligible  to  that  of  Vice-presid  ent 
of  the  United  States. 


APPENDIX.  367 

D,  p.  iv. 

WILLIAM    DUER    TO    JAMES    MADISON. 

New- York,  June  23d    1788. 
Dear  Sir, 

As  it  is  probable  you  may  not  hear  by  this  post  from  our 
mutual  friend  Colonel  Hamilton,  I  take  the  liberty  of  giving 
you  a  short  sketch  of  our  political  prospects  in  this  quarter 
on  the  great  question  of  the  Constitution.  My  information 
is  from  Colonel  Lawrence,  who  left  Poughkeepsie  on  Satur- 
day. 

A  considerable  majority  of  the  Convention  are  undoubt- 
edly Anti-Federal ;  or,  in  other  words,  wish  for  amend 
ments  previous  to  the  adoption  of  the  government.  A  few 
of  the  leaders  (among  which  I  think  I  may,  without  scruple, 
class  the  governor)  would,  if  they  could  find  support,  go 
farther,  and  hazard  everything  rather  than  agree  to  any  sys- 
tem which  tended  to  a  consolidation  of  our  government. 
Of  this,  however,  I  have  at  present  no  apprehensions, 
many  of  their  party  having  avowed  themselves  friends  to 
the  Union.  With  respect  to  amendments,  as  far  as  I  can 
understand  the  party  in  opposition,  they  cannot  agree  among 
themselves.  It  is  therefore  possible  that  this  circumstance 
may  create  a  division  in  favour  of  the  Federalists.  As  to 
the  rejection  of  the  Constitution,  there  is  not  the  least  prob- 
ability of  it.  The  great  points  of  discussion  will  probably 
be,  whether  they  will  adjourn  without  coming  to  any  deci- 
sion, or  whether  they  will  adopt  it  conditionally,  or  follow 
the  example  of  Massachusetts  and  South  Carolina.    • 

The  conduct  of  your  Convention  will  influence,  in  a  great 
degree,  ours.  If  you  adjourn  without  doing  anything,  we 
shall  do  the  same ;  but,  if  you  do  not,  there  is  still  some 
hope  that  we  may  adopt,  with  proposed  amendments :  for, 
as  to  the  second  point,  the  inconsistency  of  it  will,  I  think, 
be  too  apparent  after  a  decision  to  command  a  majority. 
While  I  am  writing,  a  gentleman  has  favoured  me  with  a 
copy  of  a  letter  from  an  mtelligent  by-stander,*  who  has  at- 
tended the  debates. of  the  Convention  ;  I  therefore  enclose 
it,  as  a  more  faithful  history  than  I  can  give. 

I  am,  with  sentiments  of  the  most  profound  esteem. 
Your  obedient,  humble  servant, 

William  Duer. 

*  James  Kent,  then  a  student  at  law  with  Mr.  E.  Benson. 


368  APPENDIX. 

JAMES  KENT  TO  ROBERT  TROUf. 

Poughkeepsie,  Friday,  June  20ih,  1788. 
Devr  Sir, 

I  had  the  pleasure  of  receiving  your  letter  hy  Mr.  Hai- 
rison,  and  in  compliance  with  your  desire,  I  shall  shortly 
state  to  you  the  proceedings  of  the  Convention  hitherto. 

They  met  on  Tuesday  in  pretty  full  house,  and  elected 
Governor  Clinton  president,  and  appointed  hy  ballot  Duane, 
Morris,  Lansing,  Jones,  and  Hening,  a  committee  for  re- 
porting rules  for  the  regulation  of  the  Convention.  On 
Wednesday,  the  rules  were  adopted,  the  Constitution  read, 
and  a  motion  made  by  Mr.  Lansing,  and  agreed  to,  that  they 
would  on  the  next  day  resolve  themselves  into  a  commit- 
tee of  the  whole,  for  the  purpose  of  discussing  the  Consti- 
tution. On  Thursday,  which  was  yesterday,  the  house  re- 
solved itself  into  a  committee,  Mr.  Couthout,  of  Albany, 
chairman.  Chancellor  Livingston  rose  and  called  our  at- 
tention to  a  fine  introductory  speech  of  one  hour's  length. 
He  mentioned  the  importance  of  the  occasion,  and  the  pe- 
culiar felicity  of  this  country,  which  had  it  in  its  power  to 
originate  and  establish  its  government  from  reason  and 
choice,  while  on  the  Eastern  Continent,  their  governments 
and  the  reforms  of  them  were  the  children  of  force.  He 
then  pointed  out  the  necessity  of  Union,  particularly  in  this 
state,  from  its  local  situation,  which  rendered  it  peculiarly 
vulnerable,  not  only  to  foreigners,  but  to  its  neighbours.  He 
stated  that  a  Union  was  to  be  expected  only  from  the  old 
Confederation,  or  from  the  government  now  under  their 
consideration.  He  then  demonstrated  the  radical  defects 
of  the  Confederation  ;  that  its  principle  was  bad,  in  legisla- 
ting for  states  in  their  political  capacity,  as  its  constitution- 
al demands  could  only  be  coerced  by  arms  ;  that  it  was  equal- 
ly defective  inform,  as  the  Congress  was  a  single  body,  too 
small  and  too  liable  to  faction,  from  its  being  a  single  body, 
to  be  intrusted  with  legislative  power,  and  too  numerous 
to  be  intrusted  with  executive  authority.  The  chancellor, 
on  this  head,  only  gave  a  summary  of  the  arguments  of 
Publius*^\ie\\  treating  on  the  defects  of  the  Confederation  ; 
but  the  summary  was  neither  so  perfect  nor  so  instructive, 
by  a  vast  difference,  as  the  original.  It  was  not,  however, 
to  be  expected  in  a  short  address.  He  concluded  that  sur- 
vey by  entreating  the  house  to  divest  themselves  of  preju- 

*  The  si{;u;iture  adopted  by  the  authors  of  "  The  Federalist." 


lice  and  warmth,  to  examine  th^  plan  submitted  with  the 
utmost  coolness  and  candour,  to  dpnsrder  themselves  as  cit- 
izens assembled  to  consult  for  the^ general  good,  and  not  ^s^  ,v 
Btate  officers,  who  might  be  opposed,  in  that  capacity,  to^^ 
every  determination  of  their  authority.  He  conciaded*  kis 
speech  by  a  motion  which,  with  some  amendments,  wrfs^'^, 
agreed  to  by  the  house,  that  they  would  discuss  the  'G'onsii- 
tution  by  paragraphs,  and  any  amendments  which  might  b^^ 
proposed  in  the  course  of  the  debate,  without  taking  llie 
question  as  to  any  paragraphs,  or  as  to  any  amendments 
which  might  be  offered,  until  the  whole  Constitution  was 
discussed.  This,  sir,  is  a  sketch  of  the  proceedings  of  the 
Convention  to  this  day.  We  expect  they  will  this  morning 
enter  on  the  subject  by  paragraphs.  I  imagine  they  will  be 
some  time  engaged  in  the  discussion,  probably  three  weeks. 
As  to  the  result,  I  can  only  say  I  look  forward  to  it  with 
anxious  uncertainty.  I  do  not  abandon  hope.  I  think  the 
opposition  discover  great  embarrassment.  I  believe  they 
do  not  know  what  to  do.  Some  of  them,  I  am  told,  have 
said  they  will  not  vote  against  it.  l^he  decision  in  New- 
Hampshire  and  Virginia,  we  are  flattering  ourselves,  will 
be  favourable ;  and  that  they  will  give  energy  to  the  debate 
on  one  side  in  our  Convention,  and  confusion,  if  not  abso- 
lute despair,  to  the  other  side.  I  hope  you  and  our  friends 
in  New- York  will  give  'us  the  earliest  information  from  those 
states. 

In  giving  you  the  heads  of  the  chancellor's  speech,  I  be- 
lieve 1  am  not  mistaken.  He  spoke  rather  low,  and  there 
was  so  much  noise,  and  the  bar  so  much  crowded,  that  I 
confess  I  lost  at  least  one  third  of  the  speech,  though  I 
trust  not  the  general  course  of  reasoning.  What  I  regret- 
ted more,  I  lost  some  of  his  figures,  for  which  he  is  pecu- 
liarly eminent.  I  shall  take  the  liberty  to  trespass  on  your 
patience  by  every  opportunity,  as  I  trust  your  curiosity 
will  excuse  me.  I  am,  &c.,  &c. 

James  Kent. 

P.S.  I  am  directed  by  Mr.  Benson  to  request  you  will 
communicate  this  information  to  Colonel  Duer. 

WILLIAM    DUER    TO    JAMES    MADISON. 

1788. 
My  dear  Sir, 
Our  iQuTual  friend,  Hamilton,  has  communicated  to  me,  in 
ooafidence,  the  substance  of  your  letter  on  the  political  pros 


376  APPENDIX. 

pects  in  Pennsylvania  and  Virginia.  I  learn  with  extreme 
regret  the  division  of  the  Federalists  in  the  former  state, 
and  the  malignant  perseverance  of  the  opponents  to  the 
Constitution  in  your  own.  I  trust,  however,  that  we  shall 
have  the  benefit  of  your  councils  and  exertions  in  the  House 
of  Representatives,  notwithstanding  Mr.  Henry's  manoeuvres 
to  prevent  it. 

You  may  remember  some  conversation  1  once  had  with 
you  on  the  subject  of  electing  Mr.  John  Adams  as  Vice- 
president.  I  have  ascertained,  through  General  Knox,  that 
this  gentleman,  if  chosen,  will  be  a  strenuous  opposer  against 
calling  a  Convention,  which,  in  the  present  state  of  parties, 
I  consider  as  a  vital  stab  to  the  Constitution  ;  and  not  only 
that,  I  have  been  informed,  in  a  mode  perfectly  satisfactory, 
that  he  and  his  old  coadjutor,  R.  H.  Lee,  will  be  altogether 
opposite  in  all  measures  relative  to  the  establishment  of  the 
character  and  credit  of  the  government.  I  am  therefore 
anxious  that  the  Federalists  to  the  southward  may  join  in 
supporting  his  nomination.  A  greater  knowledge  of  the 
world  has  cured  him  of  his  old  party  prejudices,  and  I  am 
satisfied  nothing  is  to  be  feared  from  that  quarter ;  on  the 
contrary,  should  he  be  elected  to  that  station  (which  I  am 
fully  convinced  is  his  wisb),  the  weight  of  his  state  would 
be  cast  into  the  Federal  scale. 

Interested  as  I  know  you  are  in  the  welfare  of  the  Union, 
I  cannot  omit  giving  you  this  information,  on  the  .authenti- 
city of  which  you  may  rely,  that  you  may  (without  commit- 
ting my  name)  make  such  use  of  it  as  you  think  proper. 
I  am,  with  sentiments  of  great  esteem, 

Your  obedient,  humble  servant, 

William  Duer. 

P.S.  I  have  no  objection  to  Messrs.  Robert  and  Gouv 
erneur  Morris  seeing  this  letter. 

JAMES    MADISON   TO   WILLIAM   A.  DUER.  ; 

Montpelier,  May  5th,  1835. 
Dear  Sir, 
I  have  received  your  letter  of  April  25th,  and,  with  the  aid 
of  a  friend,  an  amanuensis,  have  made  out  the  following  an 
swer. 

On  the  subject  of  Mr.  Pinckney's  proposed  plan  of  a  Con- 
stitution, it  i«  to  be  observed,  that  the  plan  printed  in  the 
journal  was  T**)t  the  document,  actually  presented  by  him  tc 


APPENDIX.  371 

the  Convention.  That  document  was  in  no  otherwise  no- 
ticed in  the  proceedings  of  the  Convention  than  by  a  refer- 
ence of  it,  with  jMr-  Randolph's  plan,  to  a  committee  of  the 
whole,  and  afterward  to  a  committee  of  detail,  with  others  ; 
and  not  being  found  among  the  papers  left  with  President 
Washington,  and  finally  deposited  in  the  Department  of 
State,  Mr.  Adams,  charged  with  the  publication  of  them,  ob- 
tained from  Mr.  Pinckney  the  document  in  the  printed  jour- 
nal as  a  copy  supplying  the  place  of  the  missing  one.  In 
this  there  must  be  error ;  there  being  sufficient  evidence, 
even  on  the  surface  of  the  journals,  that  the  copy  sent  to 
My.  Adams  could  not  be  the  same  with  the  document  laid 
before  the  Convention.  Take,  for  example,  the  article  con- 
stituting the  House  of  Representatives — the  corner-stone 
of  the  fabric ;  the  identity,  even  verbal,  of  which,  with  the 
adopted  Constitution,  has  attracted  so  much  notice.  In  the 
first  place,  the  detail  and  phraseology  of  the  Constitution 
appears  to  have  been  the  result  of  successive  discussions, 
and  are  too  minute  and  exact  to  have  been  anticipated.  In 
the  next  place,  it  appears  that,  within  a  few  days  after  Mr. 
Pinckney  presented  his  plan  to  the  Convention,  he  moved 
to  strike  out  from  the  resolution  of  Mr.  Randolph  the  pro- 
vision for  the  election  of  the  House  of  Representatives  by 
the  people,  and  refer  the  choice  of  that  house  to  the  legis- 
latures of  the  states  ;  and  to  this  preference  he  appears  to 
have  adhered  in  the  subsequent  proceedings  of  the  Conven- 
tion. Other  discrepancies  might  be  found,  in  a  source  also 
within  your  reach,  in  a  pamphlet  published  by  Mr.  Pinckney 
soon  after  the  close  of  the  Convention,  in  which  he  refers  to 
parts  of  his  plan  which  are  at  variance  with  the  document 
in  the  printed  journal.*  Farther  evidence  on  this  subject 
await  a  future,  perhaps  a  posthumous  disclosure.  One  con- 
jecture explaining  the  phenomena  has  been,  that  Mr.  Pinck 
ney  interwove  with  the  draught  sent  to  Mr.  Adams  passages 
as  agreed  on  in  the  Convention  in  the  progress  of  the  work, 
and  which,  after  a  lapse  of  more  than  thirty  years,  were  not 
separated  by  his  recollection. 

The  resolutions  of  Mr.  Randolph,  the  basis  ion  which  the 
deliberations  of  the  committee  proceeded,  were  the  result 
of  a  consultation  among  the  Virginia  deputies,  who  thought 

*  Observations  on  the  Plan  of  Government  submitted  to  the  Federal  Con- 
vention, on  the  28lh  of  May,  1/87,  by  Charles  Pinckney,  &c.,  &c.  Vide 
"  Select  Facts,"  vol.  ii.,  in  tlie  library  of  tl  Historical  Society  of  New- 
Vork. 


372  APPEI^DIX. 

It  possible  that,  as  Virginia  had  taken  so  leading  a  part  in 
reference  to  the  Federal  Convention,  some  initiative  propo- 
sitions might  be  expected  from  them.  They  vi^ere  under- 
stood not  to  commit  any  of  the  members,  absolutely  or  de- 
finitively, on  the  tenour  of  them.  The  resolutions  will  be 
seen  to  present  the  characteristic  provisions  and  features 
of  a  government  as  complete,  in  some  respects,  perhaps 
more  so,  than  the  plan  of  Mr.  Pinckney,  though  without  be 
ing  thrown  into  a  formal  shape.  The  moment,  indeed,  a 
real  Constitution  was  looked  for  as  a  substitute  for  tlie  con 
federacy,  the  distribution  of  the  government  into  the  usuaj 
departments  became  a  matter  of  course  with  all  who  specu- 
lated on  the  prospective  change,  and  the  form  of  general 
resolutions  was  adopted,  as  most  respectful  to  the  Conven- 
tion, and  as  the  most  convenient  for  discussion.  It  may  be 
observed  that,  in  reference  to  the  powers  to  be  given  to  the 
General  Government,  the  resolutions  comprehended  as  well 
the  powers  contained  in  the  Articles  of  Confederation,  with- 
out enumerating  them,  as  others  not  overlooked  in  the  res- 
olutions, but  left  to  be  developed  and  defined  by  the  Con- 
vention. 

With  regard  to  the  plan  proposed  by  Mr.  Hamilton,  I  may 
say  to  you,  that  a  Constitution  such  as  you  describe  was 
never  proposed  in  the  Convention,  but  was  communicated 
by  him  to  me,  at  the  close  of  it.  The  original  draught  being 
in  the  possession  of  his  family,  and  their  property,  I  have 
considered  any  publicity  of  it  as  lying  with  them.  Mr. 
Yates's  .notes,  as  you  observe,  are  very  inaccurate  ;  they 
are  also,  in  some  respects,  grossly  erroneous.  The  desulto- 
ry manner  in  which  he  took  them,  catching  sometimes  but 
half  the  language,  may  in  part  account  for  it.  Though  said 
to  be  a  respectable  and  honourable  man,  he  brought  with 
him  to  the  Convention  the  strongest  prejudices  against  the 
existence  and  objects  of  that  body,  in  which  he  was  strength- 
ened by  the  course  taken  in  its  deliberatioLS.  He  left  the 
Convention  long  before  the  opinions  and  views  of  many 
members  were  finally  developed  into  their  practical  applica- 
tion. The  p£fesion  and  prejudice  of  Mr.  Luther  Martin,  be- 
trayed in  his  public  letter,  could  not  fail  to  discolour  his  rep- 
resentations. He  also  left  the  Convention  before  the  com- 
pletion of  their  work.  I  have  heard,  but  will  not  vouch  for 
the  fact,  that  he  became  sensible  oi,  and  admitted  his  error  ; 
certain  it  is  that  he  joined  the  party  who  favoured  the  Con- 
stitution in  its  most  liberal  construction. 


APPENDIX.  373 

I  had,  as  you  may  recollect,  an  acquaintance  with  your 
father,  to  which  his  talents  and  social  accomplishments  were 
very  attractive  ;  and  there  was  an  incidental  correspondence 
between  us,  interchanging  information  at  a  critical  moment, 
when  the  elections  and  state  conventions  which  were  to 
decide  the  fate  of  the  new  Constitution  were  taking  place. 
You  are,  I  presume,  not  ignorant  that  your  father  was  the 
author  of  several  papers  auxiliary  to  the  numbers  of  *'  The 
Federalist."  They  appeared,  I  believe,  in  the  Gazette  of 
M-.  Childs. 

With  great  respect  and  cordial  salutations,  yours, 

James  Madison. 


E,  p.  41. 

PROCLAMATION  BY  ANDREW  JACKSON,  PRESIDENT  OF  THE 
UNITED  STATES. 

Whereas  a  convention  assembled  in  the  State  of  South 
Carolina  have  passed  an  ordinance,  by  which  they  declare 
"  that  the  several  acts  and  parts  of  acts  of  the  Congress  of 
the  United  states,  purporting  to  be  laws  for  the  imposing  of 
duties  and  imposts  on  the  importation  of  foreign  commodi- 
ties, and  now  having  actual  operation  and  effect  within  the 
United  States,  and  more  especially"  two  acts,  for  the  same 
purposes,  passed  on  the  29th  of  May,  1828,  and  on  the  14th 
of  July,  1832,  "  are  unauthorized  by  the  Constitution  of  the 
United  States,  and  violate  the  true  meaning  and  intent 
thereof,  and  are  null  and  void,  and  no  law,"  nor  binding  on 
the  citizens  of  that  state  or  its  offiers  ;  and  by  the  said  or- 
dinance ^t  is  farther  declared  to  be  unlawful  for  any  of  the 
constituted  authorities  of  the  state,  or  of  the  United  States, 
to  enforce  the  payment  of  the  duties  imposed  by  the  said 
acts  within  the  same  state,  and  that  it  is  the  duty  of  the 
Legislature  to  pass  such  laws  as  may  be  necessary  to  give 
full  effect  to  the  said  ordinance  : 

Aiid  ivhereaSf  by  the  said  ordinance  it  is  farther  ordained 
that,  in  no  case  of  law  or  equity,  decided  in  the  courts  of 
said  state,  wherein  shall  be  drawn  in  question  the  validity 
of  the  said  ordinance,  or  of  the  acts  of  the  Legislature  that 
may  be  passed  to  give  it  effect,  or  of  the  said  laws  of  the 
United  States,  no  appeal  shall  be  allowed  to  the  Supreme 
Court  of  the  United  States,  nor  shall  any  copy  of  the  record 
be  permitted  or  allowed  for  that  purpose  ;  and  that  any  per- 


374  APPENDIX. 

son  attempting  to  take  such  appeal  shall  be  punished  as  fot 
a  contempt  of  court : 

And,  finally,  the  said  ordinance  declares  that  the  people  of 
South  Carolina  will  maintain  the  said  ordinance  at  every 
hazard  ;  and  that  they  will  consider  the  passage  of  any  act 
by  Congress  abolishing  or  closing  the  ports  of  the  said  state, 
or  otherwise  obstructing  the  free  ingress  or  egress  of  ves- 
sels to  and  from'  the  said  ports,  or  any  other  act  of  the  Fed- 
eral Government  to  coerce  the  state,  shut  up  her  ports,  de 
stroy  or  harass  her  contmerce,  or  to  enforce  the  said  acts 
otherwise  than  through  the  civil  tribunals  of  the  country,  as 
inconsistent  with  the  longer  continuance  of  South  Carolina 
in  the  Union  ;  and  that  the  people  of  the  said  state  will 
thenceforth  hold  themselves  absolved  from  all  farther  obli- 
gation to  maintain  or  preserve  their  political  connexion  with 
the  people  of  the  other  states,  and  will  forthwith  proceed  to 
organize  a  separate  government,  and  do  all  other  acts  and 
things  which  sovereign  and  independent  states  may  of  right 
do: 

And  whereas,  the  said  ordinance  prescribes  to  the  people 
of  South  Carolina  a  course  of  conduct  in  direct  violation  of 
their  duty  as  citizens  of  the  United  States,  contrary  to  the 
laws  of  their  country,  subversive  of  its  Constitution,  and 
having  for  its  object  the  destruction  of  the  Union — that 
Union,  which,  coeval  with  our  political  existence,  led  oui 
fathers,  without  any  other  ties  to  unite  them  than  those  of 
patriotism  and  a  common  cause,  through  a  sanguinary  strug- 
gle to  a  glorious  independence — that  sacred  Union,  hitherto 
inviolate,  which,  perfected  by  our  happy  Constitution,  has 
brought  us,  by  the  favour  of  Heaven,  to  a  state  of  prosperity 
at  home,  and  high  consideration  abroad,  rarely^  if  ever, 
equalled  in  the  history  of  nations.  To  preserve  This  bond 
of  our  political  existence  from  destruction,  to  maintain  in- 
violate this  state  of  national  honour  and  prosperity,  and  to 
justify  the  confidence  my  fellow-citizens  have  reposed  in 
me,  I,  Andrew  Jackson,  President  of  the  United  States,  have 
thought  proper  to  issue  this  my  PROCLAMATION,  stating 
my  views  of  the  Constitution  and  laws  applicable  to  the 
measures  adopted  by  the  convention  of  South  Carolina,  and 
to  the  reasons  they  have  put  forth  to  sustain  them,  decla- 
ring the  course  which  duty  will  require  me  to  pursue,  and, 
appealing  to  tlie  understanding  and  patriotism  of  the  people, 
warn  them  of  the  consequences  that  must  inevitably  resul' 
from  an  observance  of  the  dictates  of  the  convention. 


APPENDilv.  'S7b 

Strict  duty  would  require  of  rne  nothing  more  than  the 
exercise  of  those  powers  with  which  I  am  now,  or  may 
licreafter  be,  invested,  for  preserving  the  peace  of  the  Union, 
and  for  the  execution  of  the  laws.  But  the  imposing  aspect 
vviiich  opposition  lias  assumed  in  this  case,  by  clothing  it- 
self witli  state  authority,  and  the  deep  interest  which  the 
people  of  the  United  States  must  all  feel  in  preventing  a  re- 
son  to  stronger  measures,  while  there  is  a  hope  that  any- 
rliing  will  be  yielded  to  reasoning  and  remonstrance,  perhaps 
demand,  and  will  certainly  justify,  a  full  exposition  to 
South  Carolina  and  the  nation  of  the  views  I  entertain  of 
this  important  question,  as  well  as  a  distinct  enunciation  of 
the  course  which  my  sense  of  duty  will  require  me  to  pur- 
sue. 

The  ordinance  is  founded,  not  on  the  indefeasible  right 
of  resisting  acts  which  are  plainly  unconstitutional,  and  too 
oppressive  to  be  endured,  but  on  the  strange  position  that 
any  one  state  may  not  only  declare  an  act  of  Congress  void, 
but  prohibit  its  execution  ;  that  they  may  do  this  consist- 
ently with  the  Constitution  ;  that  the  true  construction  of 
that  instrument  permits  a  state  to  retain  its  place  in  the 
Union,  and  yet  be  bound  by  no  other  of  its  laws  than  those 
it  may  choose  to  consider  as  constitutional.  It  is  true,  they 
add,  that,  to  justify  this  abrogation  of  a  law,  it  must  be  pal- 
pably contrary  to  the  Constitution  ;  but  it  is  evident  that,  to 
give  the  right  of  resisting  law^s  of  that  description,  coupled 
with  the  uncontrolled  right  to  decide  what  laws  deserve  that 
character,  is  to  give  the  power  of  resisting  all  laws.  For 
as  by  the  theory  there  is  no  appeal,  the  reasons  alleged 
by  the  state,  good  or  bad,  must  prevail.  If  it  should  be 
said  that  public  opinion  is  a  sufficient  check  against  the 
abuse  of  this  power,  it  may  be  asked  why  it  is  not  deemed  a 
sufficient  guard  against  tlie  passage  of  an  unconstitutional 
act  by  Congress.  There  is,  however,  a  restraint  in  this  last 
case,  which  makes  the  assumed  power  of  a  state  more  inde- 
fensible, and  which  does  not  exist  in  the  other.  There  are 
two  appeals  from  an  unconstitutional  act  passed  by  Con- 
gress— one  to  the  judiciary,  the  other  to  the  people  and  the 
states.  There  is  no  appeal  from  the  state  decision  in  theo- 
ry ;  and  the  practical  illustration  shows  that  the  courts  are 
closed  agamst  an  application  to  review  it,  both  judges  and 
jurors  being  sworn  to  decide  in  its  favour.  But  reasoning  on 
this  subject  is  surperfluous  when  our  social  compact,  in  ex- 
press terms,  declares  that  the  laws  of  the  United  States,  its 


376  APPENDIX 

Constitution,  and  treaties  made  under  it,  are  the  supreme! 
law  of  the  land ;  and,  for  greater  caution,  adds,  "  that  the 
judges  in  every  state  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding." And  it  may  be  asserted,  without  fear  of  ref- 
utation, that  no  federative  government  could  exist  without  a 
similar  provision.  Look  for  a  moment  to  the  consequence. 
If  South  Carolina  considers  the  revenue  laws  unconstitu- 
tional, and  has  a  right  to  prevent  their  execution  in  the  port 
of  Charleston,  there  would  be  a  clear  constitutional  objection 
to  their  collection  in  every  other  port,  and  no  revenue  could 
be  collected  anywhere  ;  for  all  imposts  must  be  equal.  It  is 
no  answer  to  repeat  that  an  unconstitutional  law  is  no  law,  so 
long  as  the  question  of  its  legality  is  to  be  decided  by  the  state 
itself;  for  every  law  operating  injuriously  upon  any  local  in- 
terest will  be  perhaps  thought,  and  certainly  represented,  as 
unconstitutional ;  and,  as  has  been  shown,  there  is  no  appeal. 

If  this  doctrine  had  been  established  at  an  earlier  day,  the 
Union  w^ould  have  been  dissolved  in  its  infancy.  The  excise 
law  in  Pennsylvania,  the  embargo  and  non-intercourse  law 
in  the  Eastern  States,  the  carriage-tax  in  Virginia,  were  all 
deemed  unconstitutional,  and  were  more  unequal  in  their 
operation  than  any  of  the  laws  now  complained  of ;  but,  for- 
tunately, none  of  those  states  discovered  that  they  had  the 
right  now  claimed  by  South  Carolina.  The  war  into  which 
we  were  forced,  to  support  the  dignity  of  the  nation  and  tlip 
rights  of  our  citizens,  might  have  ended  in  defeat  and  dis- 
grace, instead  of  victory  and  honour,  if  the  states,  who  sup- 
posed it  a  ruinous  and  unconstitutional  measure,  had  thought 
they  possessed  the  right  of  nullifying  the  act  by  which  it 
was  declared,  and  denying  supplies  for  its  prosecution. 
Hardly  and  unequally  as  those  measures  bore  upon  several 
members  of  the  Union,  to  the  legislatures  of  none  did  this 
efficient  and  peaceable  remedy,  as  it  is  called,  suggest  itself 
The  discovery  of  this  important  feature  in  our  Constitu- 
tion was  reserved  to  the  present  day.  To  the  statesmen  of 
South  Carolina  belongs  the  invention,  and  upon  the  citizens 
of  that  state  will,  unfortunately,  fall  the  evils  of  reducing  it 
to  practice. 

If  the  doctrine  of  a  state  veto  upon  the  laws  of  the  Union 
carries  with  it  internal  evidence  of  its  impracticable  absurd- 
ity, our  constitutional  history  will  also  afford  abundant  proof 
that  it  would  have  been  repudiated  with  indignation,  had  it 
been  proposed  to  form  a  feature  in  our  government. 


APPENDIX.  37" 

In  our  colonial  state,althougli  dependant  on  anothor  pow 
er,  we  very  early  considered  ourselves  as  connected  1)) 
common  interest  with  each  other.  Leagues  were  formev, 
for  common  defence,  and  before  the  Declaration  of  Independ« 
ence,  we  were  known  in  our  aggregate  character  as  tub 
United  Colonies  of  America.  That  decisive  and  impor. 
tant  step  was  taken  jointly.  We  declared  ourselves  a  natioi? 
by  a  joint,  not  by  several  acts ;  and  when  the  terms  of  our 
confederation  were  reduced  to  form,  it  was  in  that  of  a  sol- 
emn league  of  several  states,  by  which  they  agreed  that  they 
would,  collectively,  form  one  nation  for  the  purpose  of  con- 
ducting some  certain  domestic  concerns,  and  all  foreign  re- 
lations. In  the  instrument  forming  that  union,  is  found  an 
article  which  declares  that  "  every  state  shall  abide  by  the 
determinations  of  Congress  on  all  questions  which  by  that 
confederation  should  be  submitted  to  them." 

Under  the  Confederation,  then,  no  state  could  legally  an 
nul  a  decision  of  the  Congress,  or  refuse  to  submit  to  its  ex- 
ecution ;  but  no  provision  was  made  to  enforce  these  decis- 
ions. Congress  made  requisitions,  but  they  were  not  com- 
plied with.  The  government  couldvnot  operate  on  individu- 
als.   They  had  no  judiciary,  no  means  of  collecting  revenue. 

But  the  defects  of  the  Confederation  need  not  be  detailed 
Under  its  operation,  we  could  scarcely  be  called  a  nation. 
We  had  neither  prosperity  at  home  nor  consideration  abroad. 
This  state  of  things  could  not  be  endured,  and  our  present 
happy  Constitution  was  formed  ;  but  formed  in  vain,  if  this 
fatal  doctrine  prevails.  It  was  formed  for  important  objects 
that  are  announced  in  the  preamble  made  in  the  name  and 
by  the  authority  of  the  people  of  the  United  States,  whose 
delegates  framed,  and  whose  conventions  approved  it.  The 
most  important  among  these  objects,  that  which  is  placed 
first  in  rank,  on  which  all  the  others  rest,  is,  "  to  form  a  more 
•perfect  unions  Now,  is  it  possible  that,  even  if  there  were 
no  express  provision  giving  supremacy  to  the  Constitution 
and  laws  of  the  United  States  over  those  of  the  states, 
it  can  be  conceived  that  an  instrument  made  for  the  jair- 
pose  of  ^^  forming  a  more  perfect  union"  than  that  of  the  Con- 
federation, could  be  so  constructed  by  the  assembled  wisdom 
of  our  country  as  to  substitute  for  that  Confederation  a  form 
of  government  dependant  for  its  existence  on  the  local  inter- 
est, the  party  spirit  of  a  state,  or  of  a  prevailing  faction  in  a 
state  '?  Every  man  of  plain,  unsophisticated  understanding, 
who  hears  the  question,  will  give  such  an  answer  as  will 


37!^  APPENDIX. 

Dreserve  the  Union.  Metaphysical  subtilty,  in  puisuit  of  an 
impracticable  theory,  could  <rlone  have  devised  one  that  ia 
calculated  to  destroy  it. 

I  consider,  then,  the  power  to  annul  a  law  of  the  United 
States,  assumed  by  one  state,  incompatible  with  the  ex- 
istence OF  the  Union,  contradicted  expressly  by  th^ 
letter  of  the  Constitution,  unauthorized  by  its  spir- 
it, inconsistent  with  every  principle  on  which  it  was 

FOUNDED,  and  DESTRUCTIVE  OF  THE  GREAT  OBJECT  FOR  WHICH 
IT  WAS  FORMED. 

After  this  general  view  of  the  leading  principle,  we  must 
examine  the  particular  application  of  it  which  is  made  in 
the  ordinance. 

The  preamble  rests  its  justification  on  these  grounds  :  It 
assumes  as  a  fact,  that  the  obnoxious  laws,  although  they 
purport  to  be  laws  for  raising  revenue,  were,  in  reality,  in- 
tended for  the  protection  of  manufactures,  which  purpose  it 
asserts  to  be  unconstitutional ;  that  the  operation  of  these 
laws  is  unequal ;  that  the  amount  raised  by  them  is  greater 
than  is  required  by  the  wants  of  the  government ;  and, 
finally,  that  the  proceeds  are  to  be  applied  to  objects  unau- 
thorized by  the  Constitution.  These  are  the  only  cause& 
alleged  to  justify  an  open  opposition  to  the  laws  of  the 
country,  and  a  threat  of  seceding  from  the  Union,  if  any  at- 
tempt should  be  made  to  enforce  them.  The  first  virtually 
acknowledges  that  the  law  in  question  was  passed  under  a 
power  expressly  given  by  the  Constitution  to  lay  and  col- 
lect imposts  ;  but  its  constitutionality  was  drawn  in  ques- 
tion from  the  motives  of  those  who  passed  it.  However  ap- 
parent this  purpose  may  be  in  the  present  case,  nothing  can 
be  more  dangerous  than  to  admit  the  position  that  an  un- 
constitutional purpose,  entertained  by  the  members  who  as- 
sent to  a  law  enacted  under  a  constitutional  power,  shall 
make  that  law  void  ;  for  how  is  that  purpose  to  be  ascer- 
tained] Who  is  to  make  the  scrutiny  1  How  often  may 
bad  purposes  be  falsely  imputed  ]  in  how  many  cases  are 
they  concealed  by  false  professions  1  in  how  many  is  no  dec- 
laration of  motive  made  1  Admit  this  doctrine,  and  you 
give  to  the  states  an  uncontrolled  right  to  decide,  and  every 
law  may  be  annulled  under  this  pretext.  If,  therefore,  the 
absurd  and  dangerous  doctrine  should  be  admitted  that  a 
state  may  annul  an  unconstitutional  law,  or  one  that  it 
deems  such,  it  will  not  apply  to  the  present  case. 

The  next  objection  is,  that  t  he  laws  in  question  operate 


APPENDIX,  379 

/lequ  lly.  This  objection  may  be  made  with  truth  to  eve- 
ry  IdM  that  has  been  or  can  be  passed.  The  wisdom  of  man 
.lever    ?t  contrived  a  system  of  taxation  that  would  operate 

mi\\  \  rfect  equality.  If  the  unequal  operation  of  a  law 
maker,  t  unconstitutional,  and  if  all  laws  of  that  description 
may  bi  abrogated  by  any  state  for  that  cause,  then,  indeed, 
.s  the  3  ederal  Constitution  unworthy  of  the  slightest  effort 
''or  its  preservation.  We  have  hitherto  relied  on  it  as  the 
perpetual  bond  of  our  Union.  We  have  received  it  as  the 
work  of  the  assembled  wisdom  of  the  nation.     We  have 

rusted  to  it  as  to  the  sheet-anchor  of  our  safety,  in  the  stormy 
*imes  of  conflict  with  a  foreign  or  domestic  foe.  We  have 
looked  to  it  with  sacred  awe  as  the  palladium  of  our  liber- 
ties, and,  with  all  the  solemnities  of  religion,  have  pledged 
to  each  other  our  lives  and  fortunes  here,  and  our  hopes  of 
happiness  hereafter,  in  its  defence  and  support.  Were  we 
mistaken,  my  countrymen,  in  attaching  this  importance  to 
the  Constitution  of  our  country]  Was  our  devotion  paid 
to  the  wretched,  inefficient,  clumsy  contrivance  which  this 
new  doctrine  would  make  it  1  Did  we  pledge  ourselves  to 
the  support  of  an  airy  nothing — a  bubble  that  must  be  blown 
away  by  the  first  breath  of  disaffection  1  Was  this  self-de- 
stroying, visionary  theory,  the  work  of  the  profound  states- 
men, the  exalted  patriots,  to  whom  the  task  of  a  constitu- 
T.ional  reform  was  intrusted  1  Did  the  name  of  Washing- 
ion  sanction,  did  the  states  deliberately  ratify,  such  an  anom- 
aly in  the  history  of  fundamental  legislation  1  No.  We 
were  not  mistaken !  The  letter  of  this  great  instrument  is 
free  from  this  radical  fault :  its  language  directly  contra- 
dicts the  imputation  :  its  spirit— its  evident  intent  contra- 
dicts it.  No,  we  did  not  err  !  Our  Constitution  does  not 
contain  the  absurdity  of  giving  power  to  make  laws,  and  an- 
other power  to  resist  them.  The  sages,  Vv'hose  memory 
will  always  be  reverenced,  have  given  us  a  practical,  and,  as 
they  hoped,  a  permanent  constitutional  compact.  The  father 
of  his  country  did  not  affix  his  revered  name  to  so  palpable 
an  absurdity.  Nor  did  the  states,  when  they  severally  rat- 
ified it,  do  so  under  the  impression  that  a  veto  on  the  laws 
of  the  United  States  was  reserved  to  them,  or  that  they 
coUiM  exercise  it  by  implication.  Search  the  debates  in  all 
their  conventions — examine  the  speeches  of  the  most  zeai- 
ous  opposers  of  Federal  authority — look  at  the  amendments 
that  were  proposed.  They  are  all  silent — not  a  syllable  ut 
tered,  not  a  vote  given,  not  a  motion  made,  to  correct  the 


380  APPENDIX. 

explicit  supremacy  given  to  the  laws  of  the  Union  over 
those  of  the  states — or  to  show  that  implication,  as  is  now 
contended,  could  defeat  it.  No,  we  have  not  erred  !  The 
Constitution  is  still  the  object  of  our  reverence,  the  bond  of 
our  Union,  our  defence  in  danger,  the  source  of  our  prosper- 
ity in  peace.  It  shall  descend,  as  we  have  received  it,  un- 
corrupted  by  sophistical  construction,  to  our  posterity  ;  and 
the  sacrifices  of  local  interest,  of  state  prejudices,  of  per- 
sonal animosities,  that  were  made  to  bring  it  into  existence, 
will  again  be  patriotically  offered  for  its  support. 

The  two  remaining  objections  made  by  the  ordinance  to 
these  laws  are,  that  the  sums  intended  to  be  raised  by  them 
are  greater  than  are  required,  and  that  the  proceeds  will  be 
unconstitutionally  employed.  The  Constitution  has  given 
expressly  to  Congress  the  right  of  raising  revenue,  and  of 
determining  the  sum  the  public  exigencies  will  require.  The 
states  have  no  control  over  the  exercise  of  this  right,  other 
than  that  which  results  from  the  power  of  changing  the  rep- 
resentatives who  abuse  it,  and  thus  procure  redress.  Con- 
gress may  undoubtedly  abuse  this  discretionary  power,  but 
the  same  may  be  said  of  others  with  which  they  are  vested. 
Yet  the  discretion  must  exist  somewhere.  The  Constitu- 
tion has  given  it  to  the  representatives  of  all  the  people, 
cliecked  by  the  representatives  of  the  states,  and  by  the  ex- 
ecutive power.  The  South  Carolina  construction  gives  it 
to  the  Legislature  or  the  convention  of  a  single  state,  where 
neither  the  people  of  the  different  states,  nor  the  states  in 
their  separate  capacity,  nor  the  chief  magistrate  elected  by 
the  people,  have  any  representation.  Which  is  the  most 
discreet  disposition  of  the  power  1  I  do  not  ask  you,  fellow- 
citizens,  which  is  the  constitutional  disposition — that  instru- 
ment speaks  a  language  not  to  be  misunderstood.  But  if 
you  were  assembled  in  general  convention,  which  would  you 
think  the  safest  depository  of  this  discretionary  power  in  tho 
last  resort  1  Would  you  add  a  clause  giving  it  to  each  ui 
the  states,  or  would  you  sanction  the  wise  provisions  already 
made  by  your  Constitution  1  If  this  should  be  the  result  of 
your  deliberations  when  providing  for  the  future,  are  you — 
can  you — be  ready  to  risk  all  that  we  hold  dear,  to  establish, 
for  a  temporary  and  a  local  purpose,  that  which  you  must  ac- 
knowledge to  be  destructive,  and  even  absurd,  as  a  general 
provision  1  Carry  out  the  consequences  of  this  right  vest- 
ed in  the  different  states,  and  you  must  perceive  that  the 
crisis  your  conduct  presents  at  this  dav  would  recur  when 


APPENDIX.  381 

ever  any  law  of  the  United  States  displeased  any  of  the 
states,  and  that  we  should  soon  cease  to  be  a  nation. 

The  ordinance,  with  the  same  knowledge  of  the  future 
that  characterizes  a  former  objection,  tells  you  that  the  pro- 
ceeds of  the  tax  will  be  unconstitutionally  applied.  If  this 
could  be  ascertained  with  certainty,  the  objection  would, 
with  more  propriety,  be  reserved  for  the  law  so  applying  the 
proceeds,  but  surely  cannot  be  urged  against  the  laws  levy- 
ing the  duty. 

These  are  the  allegations  contained  in  the  ordinance.  Ex- 
amine them  seriously,  my  fellow-citizens — ^judge  for  your- 
selves. I  appeal  to  you  to  determine  whether  they  are  so 
clear,  so  convincing,  as  to  leave  no  doubt  of  their  correct- 
ness ;  and  even  if  you  should  come  to  this  conclusion,  how 
fur  they  justify  the  reckless,  destructive  course,  which  you 
are  directed  to  pursue.  Review  these  objections,  and  the 
conclusions  drawn  from  them,  once  more.  What  are  they  1 
Every  law,  then,  for  raising  revenue,  according  to  the  South 
Carolina  ordinance,  may  be  rightfully  annulled,  unless  it  be 
so  framed  as  no  law  ever  will  or  can  be  framed.  Congress 
have  a  right  to  pass  laws  for  raising  revenue,  and  each  state 
has  a  right  to  oppose  their  execution — two  rights  directly 
opposed  to  each  others  and  yet  is  this  absurdity  supposed 
to  be  contained  in  an  instrument  drawn  for  the  express  pur- 
pose of  avoiding  collisions  between  the  states  and  the  Gen- 
eral Government,  by  an  assembly  of  the  most  enlightened 
statesmen  and  purest  patriots  ever  imbodied  for  a  similar 
purpose. 

In  vain  have  these  sages  declared  that  Congress  shall 
have  power  to  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises ;  in  vain  have  they  provided  that  they  shall  have  power 
to  pass  laws  which  shall  be  necessary  and  proper  to  carry 
those  powers  into  execution  ;  that  those  laws  and  that  Con- 
stitution shall  be  the  "  supreme  law  of  the  land  ;  and  that 
the  judges  in  every  state  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding." In  vain  have  the  people  of  the  several 
states  solemnly  sanctioned  these  provisions,  made  them 
their  paramount  law,  and  individually  sworn  to  support  them 
whenever  they  were  called  on  to  execute  any  office.  Vain 
provisions  !  ineffectual  restrictions  !  vile  profanation  of 
oaths  !  miserable  mockery  of  legislation  !  if  a  bare  major- 
ity of  the  voters  in  any  one  state  may,  on  a  real  or  sup- 
posed knowledge  of  the  intent  with  which  a  law  has  been 


382  APPENDIX. 

passed,  declare  themselves  free  from  its  operations — S3\ 
here  it  gives  too  little,  there  too  much,  and  operates  une 
qually — here  it  suffers  articles  to  be  free  that  ought  to  be 
taxed,  there  it  taxes  those  that  ought  to  be  free — in  this 
case  the  proceeds  are  intended  to  be  applied  to  purposes 
which  we  do  not  approve,  in  that  the  amount  raised  is  more 
than  is  wanted.  Congress,  it  is  true,  are  invested  by  the 
(Jonstitution  with  the  right  of  deciding  these  questions  ac- 
cording to  their  sound  discretion.  Congress  is  composed 
of  the  representatives  of  all  the  states,  and  of  all  the  people 
of  all  the  states  ;  but  we,  part  of  the  people  of  one  state,  to 
whom  the  Constitution  has  given  no  power  on  the  subject, 
from  whom  it  has  expressly  taken  it  away — we,  who  have 
solemnly  agreed  that  this  Constitution  shall  be  our  law — 
we,  most  of  whom  have  sworn  to  support  it — we  now  abro- 
gate this  law,  and  swear,  and  force  others  to  swear,  that  it 
shall  not  be  obeyed  ;  and  we  do  this,  not  because  Congress 
have  no  right  to  pass  such  laws — this  we  do  not  allege — but 
because  they  have  passed  them  with  improper  views.  They 
are  unconstitutional  from  the  motives  of  those  who  passed 
them,  which  we  can  never  with  certainty  know,  from  their 
unequal  operation ;  although  it  is  impossible,  from  the  na- 
ture of  things,  that  they  should  be  eqiral ;  and  from  the  dis 
position  which  we  presume  may  be  made  of  their  proceeds, 
although  that  disposition  has  not  been  declared.  This  i? 
the  plain  meaning  of  the  ordinance  in  relation  to  laws 
which  it  abrogates  for  alleged  unconstitutionality.  But  it 
does  not  stop  there.  It  repeals,  in  express  terms,  an  im- 
portant part  of  the  Constitution  itself,  and  of  laws  passed 
to  give  it  effect,  which  have  never  been  alleged  to  be  un- 
constitutional. The  Constitution  declares  that  the  judicial 
powers  of  the  United  States  extend  to  cases  arising  under 
the  laws  of  the  United  States,  and  that  such  laws,  the  Con- 
stitution, and  treaties,  shall  be  paramount  to  the  state  con- 
stitutions and  laws.  The  judiciary  act  prescribes  the  mode 
by  which  the  case  may  be  brought  before  a  court  of  the 
United  States,  by  appeal,  when  a  state  tribunal  shall  de- 
:;ide  against  this  provision  of  the  Constitution.  The  ordi- 
nance declares  there  shall  be  no  appeal ;  makes  the  state 
law  paramount  to  the  Constitution  and  laws  of  the  United 
States  ;  forces  judges  and  jurors  to  swear  that  they  will  dis- 
regard their  provisions  ;  and  even  makes  it  penal  in  a  suiter 
to  attempt  relief  by  appeal.  It  farther  declares  that  it  shal 
not  bo  lawful  for  the  authorities  of  the  United  Stat»vs  or  ot 


Ai:»Pi,NiiiX.  W'6 

that  state,  to  enforce  the  payment  of  duties  imposed  by  the 
revenue  laws  within  its  limits. 

Here  is  a  law  of  the  United  States,  not  even  pretended  to 
be  unconstitutional,  repealed  by  the  authority  of  a  small  ma- 
jority of  the  voters  of  a  single  state.  Here  is  a  provision 
of  the  Constitution  which  is  solemnly  abrogated  by  the  same 
authority. 

On  such  expositions  and  reasonings  the  ordinance  grounds, 
not  only  an  assertion  of  the  right  to  annul  the  laws  of  which 
it  complains,  but  to  enforce  it  by  a  threat  of  seceding  from 
the  Union,  if  any  attempt  is  made  to  execute  them. 

This  right  to  secede  is  deduced  from  the  nature  of  the 
Constitution,  which,  they  say,  is  a  compact  between  sover- 
eign states,  who  have  preserved  their  whole  sovereignty, 
and,  therefore,  are  subject  to  no  superior ;  that,  because 
they  made  the  compact,  they  can  break  it  when,  in  their 
opinion,  it  has  been  departed  from  by  the  other  states.  Fal- 
lacious as  this  course  of  reasoning  is,  it  enhsts  state  pride, 
and  finds  advocates  in  the  honest  prejudices  of  those  wh(? 
have  not  studied  the  nature  of  our  government  sufficiently 
to  see  the  radical  error  on  which  it  rests. 

Tlie  people  of  the  United  States  formed  the  Constitution 
acting  through  the  state  legislatures  in  making  the  compact, 
to  meet  and  discuss  its  provisions,  and  acting  in  separate 
conventions  when  they  ratified  those  provisions;  but  the 
terms  used  in  its  construction  show  it  to  be  a  government 
in  which  the  people  of  all  the  states  collectively  are  repre- 
sented. We  are  one  people  in  the  choice  of  the  President 
and  Vice-president.  Here  the  states  have  no  other  agency 
than  to  direct  the  mode  in  which  the  votes  shall  be  given. 
The  candidates  having  the  majority  of  all  the  votes  are  cho- 
sen. The  electors  of  a  majority  of  states  may  have  giv- 
en their  votes  for  one  candidate,  and  yet  another  may  be 
chosen.  The  people,  then,  and  not  the  states,  are  repre- 
sented in  the  executive  branch. 

In  the  House  of  Representatives  there  is  this  difference, 
that  the  people  of  one  state  do  not,  as  in  the  case  of  President 
and  Vice-president,  all  vote  for  the  same  officers.  The  peo- 
ple of  all  the  states  do  not  vote  for  all  the  members,  each 
state  electing  only  its  own  representatives.  But  this  cre- 
ates no  material  distinction.  When  chosen,  they  are  all 
representatives  of  the  United  States,  not  representatives  of 
the  particular  state  from  which  they  come.  They  are  paid 
by  the  United  States,  not  by  the  state  ;   nor  are  they  ac 


384  APPENDIX. 

countable  to  it  for  any  act  done  in  the  performance  of  their 
legislative  functions ;  and,  however  they  may  in  practice, 
as  it  is  their  duty  to  do,  consult  and  prefer  the  interests  of 
their  particular  constituents  when  they  come  in  conflict  with 
any  other  partial  or  local  interest,  yet  it  is  their  first  and 
highest  duty,  as  representatives  of  the  United  States,  to 
promote  the  general  good. 

The  Constitution  of  the  United  States,  then,  forms  a  gov- 
ernment, not  a  league ;  and  whether  it  be  formed  by  com- 
pact between  the  states,  or  in  any  other  manner,  its  charac- 
ter is  the  same.  It  is  a  government  in  which  all  the  peoplt 
are  represented,  which  operates  directly  on  the  people  indi 
vidually,  not  upon  the  states :  they  retained  all  the  powei 
they  did  not  grant.  But  each  state  having  expressly  parted 
with  so  many  powers  as  to  constitute,  jointly  with  the  oth- 
er states,  a  single  nation,  cannot  from  that  period  possess 
any  right  to  secede,  because  such  secession  does  not  break 
a  league,  but  destroys  the  unity  of  a  nation  ;  and  any  injury 
to  that  unity  is  not  only  a  breach  which  would  result  from 
the  contravention  of  a  compact,  but  it  is  an  offence  against 
the  whole  Union.  To  say  that  any  state  may  at  pleasure 
secede  from  the  Union,  is  to  say  that  the  United  States  are 
not  a  nation  ;  because  it  would  be  a  solecism  to  contend 
that  any  part  of  a  nation  might  dissolve  its  connexion  with 
the  other  parts,  to  their  injury  or  ruin,  without  committing 
any  offence.  Secession,  like  any  other  revolutionary  act, 
indj  be  morally  justified  by  the  extremity  of  oppression ; 
but  to  call  it  a  constitutional  right  is  confounding  the  mean- 
ing of  terms,  and  can  only  be  done  through  gross  error,  or 
to  deceive  those  who  are  willing  to  assert  a  right,  but  would 
pause  before  they  make  a  revolution,  or  incur  the  penalties 
consequent  on  a  failure. 

Because  the  Union  was  formed  by  compact,  it  is  said  the 
()arties  to  that  compact  may,  when  they  feel  themselves  ag- 
;;rieved,  depart  from  it ;  but  it  is  precisely  because  it  is  a 
»-onipact  that  they  cannot.  A  compact  is  an  agreement  or 
binding  obligation.  It  may,  by  its  terms,  have  a  sanction  or 
penalty  for  its  breach,  or  it  may  not.  If  it  contains  no  sanc- 
tion, it  may  be  broken  with  no  other  consequence  than  moral 
guilt :  if  it  have  a  sanction,  thenjLhe  breach  incurs  the  desig- 
nated or  implied  penalty.  A  league  between  independent  na- 
tions, generally,  has  no  sanction  other  than  a  moral  one  ;  or, 
if  it  should  contain  a  penalty,  as  there  is  no  common  supe- 

•or,  it  cannot  be  enforced.    A  government,  on  the  contrary 


APPENDIX.  385 

always  has  a  sanction,  expressed  or  implied  ;  and  in  out 
case,  it  is  both  necessarily  implied  and  expressly  given.  An 
attempt  by  force  of  arms  to  destroy  a  government  is  an  of- 
fence, by  whatever  means  the  constitutional  compact  may 
have  been  formed  ;  and  such  government  has  the  right,  by 
the  law  of  self-defence,  to  pass  acts  for  punishing  the  offend- 
'^r,  unless  that  right  is  modified,  restrained,  or  resumed  h} 
the  constitutional  act.  In  our  system,  although  it  is  modi 
fied  in  the  case  of  treason,  yet  authority  is  expressly  given 
to  pass  all  laws  necessary  to  carry  its  powers  into  effect, 
and  under  this  grant  provision  has  been  made  for  punishing 
acts  which  obstruct  the  due  administration  of  the  laws. 

It  would  seem  superfluous  to  add  anything  to  show  the 
nature  of  that  union  which  connects  us  ;  but,  as  erroneous 
opinions  on  this  subject  are  the  foundation  of  doctrines  the 
most  destructive  to  our  peace,  I  must  give  some  farther  de- 
velopment to  my  views  on  this  subject.  No  one,  fellow- 
citizens,  has  a  higher  reverence  for  the  reserved  rights  of 
the  states  than  the  magistrate  who  now  addresses  you.  No 
one  would  make  greater  personal  sacrifices,  or  official  exer- 
tions, to  defend  them  from  violation  ;  but  equal  care  must 
be  taken  to  prevent  on  their  part  an  improper  interference 
with,  or  resumption  of,  the  rights  they  have  vested  in  the 
nation.  The  line  has  not  been  so  distinctly  drawn  as  to 
avoid  doubts  in  some  cases  of  the  exercise  of  power.  Men 
of  the  best  intentions  and  soundest  views  may  differ  in  their 
construction  of  some  parts  of  the  Constitution,  but  there 
are  others  on  which  dispassionate  reflection  can  leave  no 
doubt.  Of  this  nature  appears  to  be  the  assumed  right  of 
secession..  It  rests,  as  we  have  seen,  on  the  alleged  undi- 
vided sovereignty  of  the  states,  and  on  their  having  formed 
in  this  sovereign  capacity  a  compact  which  is  called  the  ■ 
Constitution,  from  which,  because  they  made  it,  they  have 
the  right  to  secede.  Both  of  these  positions  are  erroneous, 
and  some  of  the  arguments  to  prove  them  so  have  been  \n 
licipated. 

The  states  severally  have  not  retained  their  entiie  sover 
eignty.  It  has  been  shown  that,  in  becoming  parts  of  a  na- 
tion, not  members  of  a  league,  they  surrendered  many  of 
^heir  essential  parts  of  sovereignty.  The  right  to  make 
treaties,  declare  war,  levy  taxes,  exercise  exclusive  judi- 
cial and  legislative  powers,  were  all  of  them  functions  of 
£50vereign  power.  The  states,  then,  for  all  these  important 
purposes,  were  no  longer  sovereign.  The  allegiance  of  theii' 
G  G 


386  APPENDIX. 

citizens  was  transferred,  in  the  first  instance,  to  the  govern- 
ment of  the  United  States  ;  they  became  American  citizens, 
and  owed  obedience  to  the  Constitution  of  the  United  States, 
and  to  laws  made  in  conformity  with  the  powers  it  vested 
in  Congress.  This  last  position  has  not  been,  and  cannot 
be  denied.  How,  then,  can  that  state  be  said  to  be  sover- 
eign and  independent,  whose  citizens  owe  obedience  to  laws 
not  made  by  it,  and  whose  magistrates  are  sworn  to  disre- 
gard those  laws  when  they  come  in  conflict  with  those 
passed  by  another  1  What  shows  conclusively  that  the 
states  cannot  be  said  to  have  reserved  an  undivided  sover- 
eignty is,  that  they  expressly  ceded  the  right  to  punish  trea- 
son— not  treason  against  their  separate  power — but  treason 
against  the  United  States.  Treason  is  an  offence  against 
sovereignty,  and  sovereignty  must  reside  with  the  power  to 
punish  it.  But  the  reserved  rights  of  the  states  are  not  less 
sacred  because  they  have  for  their  common  interest  made 
the  General  Government  the  depository  of  these  powers. 
The  unity  of  our  political  character  (as  has  been  shown  for 
another  purpose)  commenced  with  its  very  existence.  Un- 
der the  royal  government  we  had  no  separate  character — 
our  opposition  to  its  oppressions  began  as  United  Colonies. 
We  were  the  United  States  under  the  Confederation,  and 
the  name  was  perpetuated,  and  the  Union  rendered  more 
perfect  by  the  Federal  Constitution.  In  none  of  these  sta- 
ges did  we  consider  ourselves  in  any  other  light  than  as 
forming  one  nation.  Treaties  and  alliances  were  made  in 
the  name  of  all.  Troops  were  raised  for  the  joint  defence. 
How,  then,  with  all  these  proofs  that,  under  all  changes  of  our 
position,  we  had,  for  designated  purposes  and  with  defined 
powers,  created  national  governments — how  is  it,  that  the 
most  perfect  of  those  several  modes  of  union  should  now  be 
considered  as  a  mere  league,  that  may  be  dissolved  at  pleas- 
ure 1  It  is  from  an  abuse  of  terms.  Compact  is  used  as 
synonymous  with  league,  although  the  true  term  is  not  em- 
ployed, because  it  would  at  once  show  the  fallacy  of  the  rea- 
soning. It  would  not  do  to  say  that  our  Constitution  was 
only  a  league ;  but  it  is  laboured  to  prove  it  a  compact 
(which  in  one  sense  it  is),  and  then  to  argue  that,  as  a  league 
is  a  compact,  every  compact  between  nations  must  of  course 
be  a  league,  and  that  from  such  an  engagement  every  sover- 
eign power  has  a  right  to  recede.  But  it  has  been  shown 
that  in  this  sense  the  states  are  not  sovereign,  and  that 
even  if  they  were,  and  the  National  Constitution  had  been 


APPENDIX.  387 

formed  by  compact,  there  would  be  n3  right  ii  any  one  state 
to  exonerate  itself  from  its  obligations. 

So  obvious  are  the  reasons  which  forbid  this  secession, 
that  it  is  necessary  only  to  allude  to  them.  The  Union  was 
formed  for  the  benefit  of  all.  It  was  produced  by  mutual 
sacrifices  of  interests  and  opinions.  Can  those  sacrifices 
be  recalled  ?  Can  the  states  who  magnanimously  surren- 
dered their  title  to  the  territories  of  the  West  recall  the 
grant  ?  Will  the  inhabitants  of  the  inland  states  agree  to 
pay  the  duties  that  may  be  imposed  without  their  assent  by 
those  on  the  Atlantic  or  the  gulf,  for  their  own  benefit  1 
Shall  there  be  a  free  port  in  one  state,  and  onerous  duties 
in  another  1  No  one  believes  that  any  right  exists  in  a  sin- 
gle state  to  involve  all  the  others  in  these,  and  countless 
other  evils,  contrary  to  the  engagements  solemnly  made 
Every  one  must  see  that  the  other  states,  in  self-defence, 
must  oppose,  at  all  hazards. 

These  are  the  alternatives  that  are  presented  by  the  con 
vention  :  a  repeal  of  all  the  acts  for  raising  revenue,  leaving 
the  government  without  the  means  of  support ;  or  an  acqui- 
escence in  the  dissolution  of  the  Union  by  the  secession  of 
one  of  its  members.  When  the  first  was  proposed,  it  was 
known  that  it  could  not  be  listened  to  for  a  moment.  It 
was  known  that,  if  force  was  applied  to  oppose  the  execution 
of  the  laws,  that  it  must  be  repelled  by  force  ;  that  Congress 
could  not,  without  involving  itself  in  disgrace,  and  the  coun- 
try in  ruin,  accede  to  the  proposition  ;  and  yet,  if  this  is  not 
done  in  a  given  day,  or  if  any  attempt  is  made  to  execute 
the  laws,  the  state  is,  by  the  ordinance,  declared  to  be  out 
of  the  Union.  The  majority  of  a  convention  assembled  for 
the  purpose  have  dictated  these  terms,  or,  rather,  this  re- 
jection of  all  terms,  in  the  name  of  the  people  of  South  Car- 
olina. It  is  true  that  the  governor  of  the  state  speaks  of 
the  submission  of  their  grievances  to  a  convention  of  all  the 
states,  which,  he  says,  they  "  sincerely  and  anxiously  seek 
and  desire."  Yet  this  obvious  and  constitutional  mode  of 
obtaining  the  sense  of  the  other  states  on  the  construction 
of  the  Federal  compact,  and  amending  it,  if  necessary,  has 
never  been  attempted  by  those  who  have  urged  the  state  on 
this  destructive  measure.  The  state  might  have  proposed 
the  call  for  a  general  convention  to  the  other  states  ;  and 
Congress,  if  a  sufficient  number  of  them  concurred,  must 
tiave  called  it.  But  the  first  magistrate  of  South  Carolina, 
vvhcn  ne  expressed  a  hope  that,  *'  on  a  review  by  Congress 


388  APPENDIX. 

and  the  functionaries  of  the  General  Government  of  the  mer 
its  of  the  controversy,"  such  a  convention  will  be  accorded 
to  them,  must  have  known  that  neither  Congress  nor  any 
functionary  of  the  General  Government  has  authority  to  call 
such  a  convention,  unless  it  be  demanded  by  two  thirds  of 
the  states.  This  suggestion,  then,  is  another  instance  ol 
the  reckless  inattention  to  the  provisions  of  the  Constitu- 
^--TT  with  which  this  crisis  has  been  madly  hurried  on,  or 
<>e  attempt  to  persuade  the  people  that  a  constitutional 
'-•'r»edy  had  been  sought  and  refused.  If  the  Legislature  of 
6outh  Carolina  "  anxiously  desire"  a  general  convention  to 
consider  their  complaints,  why  have  they  not  made  applica- 
tion for  it  in  the  way  the  Constitution  points  out  1  The  as- 
sertion that  they  "  earnestly  seek'*  it  is  completely  negatived 
by  the  omission. 

This,  then,  is  the  position  in  which  we  stand  A  small 
majority  of  the  citizens  of  one  state  in  the  Union  have  elect- 
ed delegates  to  a  state  convention  :  that  convention  has  or- 
dained that  all  the  revenue  laws  of  the  United  States  must 
be  repealed,  or  that  they  are  no  longer  a  member  of  the 
Union.  The  governor  of  that  state  has  recommended  to  tlie 
Legislature  the  raising  of  an  army  to  carry  the  secession 
into  effect,  and  that  he  may  be  empowered  to  give  clearan- 
ces to  vessels  in  the  name  of  the  state.  No  act  of  violent 
opposition  to  the  laws  has  yet  been  committed,  but  such  a 
state  of  things  is  hourly  apprehended  ;  and  it  is  the  intent  of 
this  instrument  to  proclaim,  not  only  that  the  duty  imposed 
on  me  by  the  Constitution  "  to  take  care  that  the  laws  be 
faithfully  executed,"  shall  be  performed  to  the  extent  of 
the  powers  already  vested  in  me  by  law,  or  of  such  other 
as  the  wisdom  of  Congress  shall  devise  and  intrust  to  me 
for  that  purpose,  but  to  warn  the  citizens  of  South  Caroli- 
na,  who  have  been  deluded  into  an  opposition  to  the  laws, 
of  the  danger  they  will  incur  by  obedience  to  the  illegal  and 
disorganizing  ordinance  of  the  convention  ;  to  exhort  those 
who  have  refused  to  support  it  to  persevere  in  their  deter- 
mination to  uphold  the  Constitution  and  laws  of  their  coim- 
try.  and  to  point  out  to  all  the  perilous  situation  into  which 
the  good  people  of  that  state  have  been  led  ;  and  that  the 
course  they  are  urged  to  pursue  is  one  of  ruin  and  disgrace 
to  the  very  state  whose  rights  they  affect  to  support. 

Fellow-citizens  of  my  native  state  !  let  me  not  only  ad- 
monish you,  as  the  first  magistrate  of  our  common  country, 
not  to  incur  the  penalty  of  its  laws,  but  use  the  influenct 


APPENDIX.  389 

that  a  father  would  over  his  children  whom  he  saw  rushing 
to  certain  ruin.  In  that  paternal  language,  with  that  pater- 
nal feeling,  le^.  me  tell  you,  my  countrymen,  that  you  are  de- 
luded hy  men  who  are  either  deceived  themselves  or  wish 
to  deceive  you.  Mark  under  what  pretences  you  have  been 
led  on  to  the  brink  of  insurrection  and  treason,  on  which  you 
stand  !  First,  a  diminution  of  the  value  of  your  staple  com- 
modity, lowered  by  over-production  in  other  quarters,  and 
the  consequent  diminution  in  the  value  of  your  lands,  were 
the  sole  effect  of  the  tariff  laws.  The  effect  of  those  laws 
are  confessedly  injurious,  but  the  evil  was  greatly  exaggera- 
ted hy  the  unfounded  theory  you  were  taught  to  believe,  that 
its  burdens  were  in  proportion  to  your  exports,  not  to  your 
consumption  of  imported  articles.  Your  pride  was  roused 
by  the  assertion  that  a  submission  to  those  laws  was  a  state 
of  vassalage,  and  that  resistance  to  them  was  equal,  in  pa 
Iriotic  merit,  to  the  opposition  our  fathers  offered  to  the  op- 
pressive laws  of  Great  Britain.  You  were  told  that  this 
opposition  might  be  peaceably — might  be  constitutionally 
made  ;  that  you  might  enjoy  all  the  advantages  of  the  Union, 
and  bear  none  of  its  burdens. 

Eloquent  appeals  to  your  passions,  to  your  state  pride,  tu 
your  native  courage,  to  your  sense  of  real  injury,  were  used 
to  prepare  you  for  the  period  when  the  mask  which  con 
cealed  the  hideous  features  of  disunion  should  be  taken  off. 
It  fell,  and  you  were  made  to  look  with  complacency  on  ob- 
jects which,  not  long  since,  you  would  have  regarded  with 
horror.  Look  back  at  the  arts  which  have  brought  you  tc 
this  state — look  forward  to  the  consequences  to  which  it 
must  inevitably  lead  !  Look  back  to  what  was  first  told 
you  as  an  inducement  to  enter  into  this  dangerous  course. 
The  great  political  truth  was  repeated  to  you,  that  you  had 
the  revolutionary  right  of  resisting  all  laws  that  were  palpa- 
bly unconstitutional  and  intolerably  oppressive :  it  was  ad- 
ded that  the  right  to  nullify  a  law  rested  on  the  same  j)rij^ 
pie,  but  that  it  was  a  peaceable  remedy  J  This  characte? 
which  was  given  to  it,  made  you  receive,  with  too  much  con- 
fidence, the  assertions  that  were  made  of  the  unconstitution- 
ality of  the  law,  and  its  oppressive  effects.  Mark,  my  fei 
low-citizens,  that  by  the  admission  of  your  leaders,  the  un- 
constitutionality must  he  palpable,  or  it  will  not  justify  either 
resistance  or  nullification  !  What  is  the  meaning  of  the 
word  palpable^  in  the  sense  in  which  it  is  here  used  ] — that 
which  is  ap/arent  to  every  one  •  that  which  no  man  of  or- 


390  APPENDIX. 

ojnary  intellect  will  fail  to  perceive.  Is  the  unconstitution- 
ality of  these  laws  of  that  description  1  Let  those  among 
your  leaders  who  once  approved  and  advocated  the  princi-. 
pie  of  protective  duties,  answer  the  question  ;  and  let  them 
choose  whether  they  will  be  considered  as  incapable  then  of 
perceiving  that  which  must  have  been  apparent  to  every 
man  of  common  understanding,  or  as  imposing  upon  your 
coniidence,  and  endeavouring  to  mislead  you  now.  In  either 
case,  they  are  unsafe  guides  in  the  perilous  path  tliey  urge 
you  to  tread.  Ponder  well  on  liiis  circumstance,  and  you 
will  know  how  to  appreciate  the  exaggerated  language  they 
iiddress  to  you.  They  are  not  champions  of  Jiberty,  emulating 
the  fame  of  our  revolutionary  fatliers ;  nor  are  you  an  ()}>- 
pressed  people,  contending,  as  they  repeat  to  you,  against 
worse  than  colonial  vassalage.  You  are  free  members  of  a 
flourishing  and  happy  Union.  There  is  no  settled  design  to 
oppress  you.  You  have,  indeed,  felt  the  unequal  operation 
of  laws  which  may  have  been  unwisely,  not  unconstitution- 
ally passed  ;  but  that  inequality  must  necessarily  l>e  remo- 
ved. At  the  very  moment  when  you  were  madly  urged  on 
the  unfortunate  course  you  have  begun,  a  change  in  public 
opinion  had  commenced.  The  nearly  approaching  payment 
of  the  public  debt,  and  the  consequent  necessity  of  a  diminu- 
tion of  duties,  had  already  produced  a  considerable  reduc- 
tion, and  that,  too,  on  some  articles  of  general  consumption 
in  your  state.  The  importance  of  this  change  was  under- 
stood, and  you  were  authoritatively  told  that  no  farther  al- 
leviation of  your  burdens  was  to  be  expected,  at  the  very 
time  when  the  condition  of  the  country  imperiously  demand- 
ed such  a  modification  of  the  duties  as  should  reduce  them 
to  a  just  and  equitable  scale.  But,  as  if  apprehensive  of 
the  effect  of  this  change  in  allaying  your  discontents,  you 
were  precipitated  into  the  fearful  state  in  which  you  now 
find  yourselves. 

I  have  urged  you  to  look  back  to  the  means  that  were  used 
to  hurry  you  on  to  the  position  you  have  now  assumed,  and 
forward  to  the  consequences  it  wdl  produce.  Something 
more  is  necessary.  Contemplate  the  condition  of  that  coun 
try  of  which  you  still  form  an  important  part !  Consider  it:^ 
government,  uniting  in  one  bond  of  common  interests  and 
general  protection  so  many  different  states,  giving  to  all 
their  inhabitants  the  proud  title  of  American  citizens,  ])ro- 
tecting  their  commerce,  securing  llieir  literature  and  tlieir 
arts,  facilitating  their  intercommunication,  defending  theii 


APPENDIX.  391 

frontiers,  and  making  their  name  respected  in  the  remotest 
parts  of  the  earth  !  Consider  the  extent  of  its  territory,  its 
increasing  and  happy  population,  its  advance  in  arts,  which 
render  life  agreeable,  and  the  sciences,  which  elevate  the 
mind  !  See  education  spreading  the  lights  of  religion,  hu- 
manity, and  general  information  into  every  cottage  in  this 
wide  extent  of  our  territories  and  states  !  Behold  it  as  the 
asylum  where  the  wretched  and  the  oppressed  find  a  refuge 
and  support !  Look  on  this  picture  of  happiness  and  hon- 
our, and  say,  We,  too,  are  citizens  of  America  ;  Carolina 
is  oiffe  of  these  proud  states  :  her  arms  have  defended,  her 
best  blood  has  cemented  this  happy  Union  !  And  then  add, 
if  you  can,  without  horror  and  remorse,  this  happy  Union 
we  will  dissolve  ;  this  picture  of  peace  and  prosperity  we 
will  deface  ;  this  free  intercourse  we  will  interrupt ;  these 
fertile  fields  we  will  deluge  with  blood  ;  the  protection  of 
that  glorious  flag  we  renounce  ;  the  very  names  of  Ameri- 
cans we  discard.  And  for  what,  mistaken  men  ! — for  what 
do  you  throw  away  these  inestimable  blessings — for  what 
would  you  exchange  your  share  in  the  advantages  and  hon- 
our of  the  Union  '?  For  the  dream  of  a  separate  independ- 
ence— a  dream  interrupted  by  bloody  conflicts  with  your 
neighbours,  and  a  vile  depend ance  on  a  foreign  power.  If 
your  leaders  could  succeed  in  establishing  a  separation, 
what  would  be  your  situation  1  Are  you  united  at  home — 
are  you  free  from  the  apprehension  of  civil  discord,  with  all 
its  fearful  consequences'!  Do  our  neighbouring  republics, 
every  day  suffering  some  new  revolution,  or  contending  with 
some  new  insurrection — do  they  excite  your  envy  1  But  the 
dictates  of  a  high  duty  oblige  me  solemnly  to  announce  that 
you  cannot  succeed. 

The  laws  of  the  United  States  must  be  executed.  I  have 
no  discretionary  power  on  the  subject — my  duty  is  emphat- 
ically pronounced  in  the  Constitution.  Those  who  told  you 
that  you  might  peaceably  prevent  their  execution,  deceived 
you — they  could  not  have  been  deceived  themselves.  They 
know  that  a  forcible  opposition  could  alone  prevent  the  ex- 
ecution of  the  laws,  and  they  know  that  such  opposition 
must  be  repelled.  Their  object  is  disunion  ;  but  be  not  de- 
ceived by  names  ;  disunion,  by  armed  force,  is  treason. 
Are  you  really  ready  to  incur  its  guilt  1  If  you  are,  on  the 
heads  of  the  instigators  of  the  act  be  the  dreadful  consequen- 
ces— on  their  heads  be  the  dishonour,  but  on  yours  may  fall 
the  punishment — on  your  unhappy  state  will  inevitably  fall 


392  APPENDIX. 

all  the  evils  of  the  conflict  you  force  upon  the  government 
of  your  country.  It  cannot  accede  to  the  mad  project  of 
disunion  of  which  you  would  be  the  first  victims — its  first 
magistrate  cannot,  if  he  would,  avoid  the  performance  of  his 
duty — the  consequence  must  be  fearful  for  you,  distressing 
to  your  fellow-citizens  here,  and  to  the  friends  of  good  gov- 
ernment throughout  the  world.  Its  enemies  have  beheld  our 
prosperity  with  a  vexation  they  could  not  conceal :  it  was 
a  standing  refutation  of  their  slavish  doctrines,  and  they  will 
point  to  our  discord  with  the  triumph  of  malignant  joy.  It 
is  yei  ii.  your  power  to  disappoint  them.  There  is  ye#time 
to  show  that  the  descendants  of  the  Pinckneys,  the  Sump- 
ters,  the  Rutledges,  and  of  the  thousand  other  names  which 
adorn  the  pages  of  your  revolutionary  history,  will  not  aban- 
don that  Union  to  support  which  so  many  of  them  fought, 
and  bled,  and  died.  I  adjure  you,  as  you  honour  their  mem- 
ory— as  you  love  the  cause  of  freedom,  to  which  they  dedi- 
cated their  lives — as  you  prize  the  peace  of  your  country, 
the  lives  of  its  best  citizens,  and  your  own  fair  fame,  to  re- 
trace your  steps.  Snatcii  from  the  archives  of  your  state 
the  disorganizing  edict  of  its  convention  ;  bid  its  members 
to  reassemble  and  promulgate  the  decided  expressions  of 
your  will  to  remain  in  the  path  which  alone  can  conduct  you 
to  safety,  prosperity,  and  honour ;  tell  them  that,  compared 
to  disunion,  all  other  evils  are  light,  because  that  brings  with 
it  an  accumulation  of  all ;  declare  that  you  will  never  take 
the  field  unless  the  star-spangled  banner  of  your  country 
shall  float  over  you  ;  that  you  will  not  be  stigmatized  when 
dead,  and  dishonoured  and  scorned  while  you  live,  as  the 
authors  of  the  first  attack  on  the  Constitution  of  your  coun- 
try !  Its  destroyers  you  cannot  be.  You  may  disturb  its 
peace — you  may  interrupt  the  course  of  its  prosperity — you 
may  cloud  its  reputation  for  stability — but  its  tranquillity 
will  be  restored,  its  prosperity  will  return,  and  the  stain 
upon  its  national  character  will  be  transferred,  and  remain 
an  eternal  blot  on  the  memory  of  those  wlio  caused  the  dis- 
order. 

Fellow-citizens  of  the  United  States  !  The  threat  of  un- 
hallowed disunion— the  names  of  those,  once  respected,  by 
whom  it  is  uttered — the  array  of  military  force  to  support 
it — denote  the  approach  of  a  crisis  in  our  affairs  on  which 
the  continuance  of  our  unexampled  prosperity,  our  political 
existence,  and  perhaps  that  of  all  free  governments,  may 
depend.  The  conjunction  demanded  a  free,  a  full,  and  ex- 
plicit enunciation,  not  only  of  my  intentions,  hut  of  my  prin- 


APPENDIX.  3C3 

ciples  of  action  ;  and  as  the  claim  was  asserted  of  a  right 
by  a  state  to  annul  the  laws  of  the  Union,  and  even  to  se- 
cede from  it  at  pleasure,  a  frank  exposition  of  my  opinions 
in  relation  to  the  origin  and  form  of  our  government,  and  Ihe 
construction  I  give  to  the  instrument  by  which  it  was  crea- 
ted, seemed  to  be  proper.  Having  the  fullest  confidence  in 
the  justness  of  the  legal  and  constitutional  opinion  of  my 
duties  which  has  been  expressed,  I  rely  with  equal  conli- 
dence  on  your  undivided  support  in  my  determination  to  ex- 
ecute the  laws — to  preserve  the  Union  by  all  constitutional 
means — to  arrest,  if  possible,  by  moderate  but  firm  meas- 
ures, the  necessity  of  a  recourse  to  force  ;  and,  if  it  be  the 
will  of  Heaven  that  the  recurrence  of  its  primeval  curse  on 
man  for  the  shedding  of  a  brother's  blood  should  fall  upon 
our  land,  that  it  be  not  called  down  by  any  offensive  act  on 
the  part  of  the  United  States. 

Fellow-citizens '     The  momentous  case  is  before  you. 
On  your  undivided  support  of  your  government  depends 
the  decision  of  the  great  question   it  involves,  whether 
your  sacred  Union  will  be  preserved,  and  the  blessings  it 
secures  to  us  as  one  people  shall  be  perpetuated.     No  one 
can  doubt  that  the  unanimity  with  which  that  decision  will 
be  expressed  will  be  such  as  to  inspire  new  confidence  in 
Republican  institutions,  and  that  the  prudence,  the  wisdom, 
and  the  courage  which  it  will  bring  to  their  defence,  will 
transmit  them  unimpaired  and  invigorated  to  our  children. 
May  the  great  Ruler  of  nations  grant  that  the  signal  bless- 
ings with  which  He  has  favoured  ours  may  not,  by  the  mad- 
ness of  party  or  personal  ambition,  be  disregarded  and  lost ; 
and  may  His  wise  providence  bring  those  who  have  pro- 
duced this  crisis  to  see  the  folly,  before  they  feel  the  mis- 
ery of  civil  strife  ;  and  inspire  a  returning  veneration  foi 
that  Union  which,  if  we  may  dare  to  penetrate  His  designs, 
He  has  chosen  as  the  only  means  of  attaining  the  high  des 
tinies  to  which  we  may  reasonably  aspire. 
In  testimony  wliereof,  I  have  caused  the  seal  of  the  Uni- 
ted States  to  be  hereunto  affixed,  having  signed  the 
same  with  my  hand. 
Done  at  the  city  of  Washington  this  10th  day  of  Decem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  thirty-tw^^),  and  of  the  Independence  of  tha 
United  States  the  fifty-seventli. 

A.NDREW  JACKSON 
By  the  President : 

Edw.  Livingston,  Sfr.refary  of  Slate. 


394  APPENDIX. 


F,  p.  360. 

ortNION  AS  TO  THE  CONSTITUTIONAL  VALIDITY  OF  THE 
LA.WS  OF  NEW- YORK  GRANTING  EXCLUSIVE  PRIVILEGES 
Of  STEAM  NAVIGATION. 

On  considering  the  case  submitted  to  me  on  behalf  of 
Mr.  Gibbons,  I  am  of  opinion  that  he  has  a  perfect  right, 
founded  on  the  documents,  of  which  copies  are  appended  to 
the  case,  to  navigate  his  steamboats  on  all  the  waters  of  this 
state,  which  it  enjoys  in  common  with  New- Jersey,  and 
which  communicate  either  with  a  port  or  place  in  the  State 
of  New- York,  or  empty  into  the  Atlantic  Ocean ;  and  that 
such  right  is  not  taken  away,  atfected,  or  impaired  by  the 
legislative  grant  to  Messrs.  Livingston  and  Fulton.  I  should, 
therefore,  advise  Mr.  Gibbons,  instead  of  making  the  appli- 
cation he  contemplates  to  the  Legislature,  to  bring  the 
questions  at  issue  between  him  and  its  grantees,  to  trial  in 
the  courts  of  the  United  States.  The  reasons  that  govern 
my  opinion  I  shall  briefly  state. 

The  case  of  Livingston  and  Fulton  vs.  Van  Ingen  and  oth- 
ers (9  Johns.  Rep.,  507)  furnishes,  as  I  humbly  conceive, 
no  inferences  hostile  to  the  claim  of  Mr.  Gibbons  ;  but,  prop- 
erly considered,  strengthens  the  arguments  which  occur  to 
me  in  support  of  this  right.  The  great  question  in  that 
cause  was  twofold,  viz.  :  Whether  the  grant  to  Jjivingston 
and  Fulton  was  absolutely  void,  as  made  in  contravention 
of  the  constitutional  powers  of  Congress,  first,  "  To  pro- 
mote the  progress  of  science  and  the  useful  arts ;"  and,  sec- 
ondly, whether  it  were  repugnant  to  the  power  vested  in 
Congress  "to  regulate  commerce." 

I.  On  the  first  point,  the  court  decided  that  the  grant  w^as 
not  absolutely  void,  on  two  grounds  :  first,  that,  considering 
Messrs.  Livingston  and  Fulton  as  inventors,  the  state  had  a 
concurrent  right  with  Congress  to  reward  them  as  invent- 
ors, by  the  grant  of  exclusive  privileges  ;  secondly,  that,  con- 
sidering them  not  as  inventors,  but  as  possessors  and  im- 
.porters  of  a  foreign  invention,  the  state  had  an  independent 
power  to  reward  them  as  such  ;  w  hich  power  had  not  been 
ceded  to  Congress  at  all. 

It  must  be  borne  in  mind,  that  Van  Ingen  and  his  associ- 
ates showed  no  right  or  title  whatever  ;  and,  for  aught  that 
appears,  their  mode  of  applying  the  steam-engine  in  the 
navigation  of  their  boats  was  the  same  that  had  alrea^ 


APPENDIX.  395 

been  introduced  by  Livingston  and  Fulton.  Throughout 
the  whole  discussion,  the  powers  of  the  state  were  assimi- 
lated to  the  powers  of  Congress ;  and  two  of  the  learned 
judges,  by  whom  opinions  were  delivered,  Mr.  Justice 
Thompson  and  Mr.  Justice  Yates,  explicitly  admit  that  the 
state  powers  can  only  be  legitimately  exercised  in  harmoni/ 
with,  and  in  subordination  to,  the  superior  power  of  Congress 
In  strict  reasoning,  therefore,  no  more  can  be  inferred  from 
the  decision  of  the  Court  of  Errors  than  that  the  grant  to 
Livingston  and  Fulton  is  so  far  valid  as  to  secure  to  them, 
and  their  representatives,  an  exclusive  right  to  that  peculiar 
mode  of  navigating  vessels  by  steam  or  fire  which  they  intro- 
duced into  practice,  and  of  which  the  act  of  March,  1798,  states 
Mr.  Livingston  to  be  in  possession.  Such  is  the  extent  of  the 
constitutional  power  of  Congress,  to  which  the  state  powers 
are  resembled  ;  and  it  is  only  by  this  limited  construction 
of  the  grant  that  the  reasoning  of  the  learned  judges  can  be 
rendered  applicable  and  consistent.  As  it  is,  then,  only  that 
a  "  collision"  between  this  exercise  of  the  state  sovereignty 
and  the  constitutional  power  of  Congress  can  possibly  be 
prevented,  certainly  the  Court  of  Errors  has  not  said,  nor 
is  there  any  ground  for  supposing  that  it  meant  to  say,  that 
the  state,  by  virtue,  either  of  its  concurrent  power  to  re- 
ward inventors,  or  its  independent  power  to  reward  the  im- 
porters of  foreign  inventions,  can  prohibit  the  introduction 
and  use,  within  its  jurisdiction,  of  all  future  inventions,  al- 
though secured  by  patent,  in  relation  to  the  same  object ;  or, 
by  a  still  more  violent  stretch  of  authority,  transfer  the  ex- 
clusive right  to  such  inventions  from  the  patentee  to  the 
legislative  favourite.  Yet,  if  the  terms  of  the  original 
grant  to  Messrs.  Livingston  and  Fulton,  and  of  the  various 
laws  passed  to  enlarge  and  secure  that  grant,  are  to  be  ta- 
ken in  their  literal  extent,  such  was  to  be  their  operation. 

By  the  act  of  March,  1798,  all  the  privileges  granted  before 
lo  John  Fitch  and  his  representatives  were  transferred  to  Mr. 
I^ivingston.  These  privileges  were  "the  sole  and  exclusive 
right  of  constructing,  making,  using,  employing,  or  naviga- 
ting all,  and  every  species  or  kind  of  boats  or  water-craft, 
which  might  be  urged  or  propelled  through  the  waters  of 
this  state,  by  force  of  fire  or  steam,  in  all  creeks,  rivers,  cStc, 
within  the  territory  and  jurisdiction  of  this  state."  It  must 
be  remembered,  that  the  grant  to  Fitch  was  made  previous- 
ly to  the  adoption  of  the  present  Federal  Constitution,  and  he 
fore  the  state  had  surrendered  this  portion  of  its  sovereign 


396  APPENDIX. 

ty  to  the  General  Government ;  while  it  remained  m  full  and 
acknowledged  possession  of  the  powers  to  reward  genius 
and  skill,  and  to  encourage  and  foster  navigation  and  com- 
merce, by  the  means  resorted  to  in  favour  of  John  Fitch. 
But  she  had  ceded  those  powers,  which,  to  be  effectual, 
must  be  exclusive,  to  the  United  States,  before  the  monopo- 
ly— for  this  is  the  proper,  though  odious  term,  by  which  such 
grants  should  be  designated — was  attempted  to  be  vested 
in  Messrs.  Livingston  and  Fulton.  The  only  limitation  of 
this  monopoly  of  navigation  is,  that  steam  or  fire  be  made 
use  of  as  the  propelling  force  ;  and  the  general  terms  of  the 
grant  comprehend  every  possible  mode  of  producing  and  ap- 
plying that  force,  which  human  ingenuity  has  discovered  or 
can  invent. 

By  the  act  of  1808,  creating  the  forfeiture,  it  is  declared 
that  "  no  person  or  persons,  without  the  license  of  the  per- 
sons entitled  to  the  exclusive  right,  shall  navigate  on  the  wa- 
ters of  this  state,  or  witliin  the  jurisdiction  thereof,  any  boat 
or  vessel  moved  by  steam  or  fire."  Thus  the  introduction 
into  this  state  of  any  future  invention,  however  original  or 
valuable,  in  navigating  vessels  by  steam  or  fire,  is  in  terms 
prohibited  without  the  sanction  of  the  individuals  in  whom 
the  right  to  employ  all  such  inventions  is  exclusively  vested. 
The  very  ground  on  which  invention  is  to  work  is  seized 
upon  and  preoccupied,  and  an  exclusive  privilege  given, 
which  not  only  prevents  the  future  reward  of  security  to  in- 
ventors, but,  in  one  important  region,  would  stop  the  prog- 
ress of  discovery  itself  The  very  elements  by  which  im- 
provements can  be  made  is  monopolized,  and  the  occasion 
snatched  from  Congress  of  exercising  the  power  given  to  it 
by  the  Constitution.  Now,  if  this  can  be  done  in  one  state, 
in  relation  to  any  one  subject,  why  may  it  not  be  done  in 
all,  and  in  relation  to  alU  Where  are  we  to  fix  the  limit 
of  state  power  1  Why  may  not  the  states,  respectively, 
grant  monopolies  embracing  all  the  possible  elements  aiul 
materials,  of  which  inventions  can  be  framed,  and  every 
possible  subject  upon  which  ingenuity  can  operated  and 
thus  anticipate  and  frustrate,  m  /oto,  the  exercise  of  the  con- 
stitutional power  of  Congress,  to  secure  an  exclusive  right  to 
inventors. 

It  may  be  said  that  this  is  an  extreme  and  improbable 
supposition.  I  admit  it  to  be  improbable  that  the  states 
will  attempt  such  an  exercise  of  power ,  bu*  it  is  by  ex- 
treme cases,  or.  to  speak  with  more  propriety,  it  is  by  pur- 


APPENDIX.  397 

\ 

suing  a  doctrine  to  its  legitimate  consequences,  that  ^ve  are 
frequently  best  enabled  to  detect  or  illustrate  its  absurdity. 
If  the  constitutional  power  of  Congress  can  he  taken  away 
by  the  grant  of  a  state  monopoly  in  any  case,  I  am  at  a  loss 
to  conceive  why  it  may  not,  by  similar  means,  be  taken 
away  in  all  cases.  The  principle  once  admitted,  the  conse- 
quence, of  necessity,  follows.  It  was  affirmed  in  argument, 
by  one  of  the  learned  counsel "*■  by  whom  the  claim  of  Messrs. 
l.ivingston  and  Fulton  was  so  ably  vindicated  in  the  Court 
of  Errors,  that  the  only  effect  of  a  patent  is  to  confer  on  the 
inventor  a?i  exclusive  right  of  properly  in  his  discovery;  that, 
at  common  law,  an  invention  or  discovery  is  converted  into 
a  chattel,  a  subject  to  which  a  right  of  property  can  attach. 
The  exercise,  however,  of  this  right  of  property  is,  as  it  was 
said,  still  liable  to  be  controlled  and  regulated  by  the  muni- 
cipal law^s  of  the  several  states,  who  may  prohibit  the  use 
o-^  any  particular  invention,  as  noxious  to  the  health,  injuri- 
ous to  the  morals,  or  in  any  other  respect  prejudicial  to  the 
welfare  of  its  citizens.  When  I  declare  that  I  cannot  help 
entertaining  the  strongest  doubts  of  the  truth  and  soundness 
of  this  doctrine,  I  must  be  understood  to  speak  with  the  ut- 
most diffidence  in  my  own  judgment,  and  with  the  highest 
respect  for  the  authority  of  those  by  whom  the  doctrine  has 
been  advanced  or  adopted.  It  seems  to  me  that  Congress 
possesses  exclusively  the  power  to  determine  whether  an 
invention  for  which  a  patent  is  sought  be  useful  or  perni- 
cious ;  in  other  words,  whether  it  be  one  for  which  a  patent 
ought  or  ought  not  to  be  granted.  The  object  of  tbe  con- 
stitutional power  of  Congress  to  secure  an  exclusive  right 
to  inventions,  is  the  promotion  of  the  ^'useful  arts."  An 
invention  useless  or  pernicious,  it  is  evident,  would  not  be 
a  proper  object  for  its  exercise.  Should  a  patent  for  such 
an  invention  unadvisedly  have  issued,  there  can  be  no  doubt 
that  Congress  might  repeal  the  patent,  and  interdict  thv 
use  of  the  noxious  discovery. 

The  grant  of  the  power  in  question  to  Congress  would, 
as  it  appears  to  me,  be  completely  nugatory,  by  the  admis 
sion  that  the  states,  in  the  exercise  of  an  absolute  discre 
tion,  may  prohibit  the  introduction  or  use  of  any  particular 
mvention,  for  which  a  patent  has  been  regularly  obtained 
Were  this  construction  of  the  Constitution  to  prevail,  tho 
statps.  it  seems  to  me,  would  retain,  substantiai'v.  the  very 

*  The  late  Thomas  Addis  Emmet 


399  APPENDIX. 

pf  vver  they  nominally  have  parted  with.  What  is  the  Con- 
stitution 1  It  is  the  instrument  hy  which  the  states  have 
severally  ceded  to  the  Federal  Government  a  certain  por- 
tion of  their  own  sovereignty,  to  be  exercised  for  the  com- 
mon good.  The  power  of  securing  the  exclusive  right  of 
inventors  is  thus  given.  But  if  the  states  not  only  possess 
a  concurrent  power  of  granting  exclusive  privileges  within 
their  respective  limits,  but  may,  in  effect,  repeal  and  annul,  ad 
libitum,  any  and  all  patents  which  Congress  may  have  issued, 
what  power,  I  may  ask,  in  relation  to  this  subject,  have 
they  parted  with  1  What  portion  of  their  sovereignty,  quoad 
hoc,  have  they  ceded  1  The  whole  value  of  a  patent  consists, 
I  apprehend,  in  the  exclusive  privilege  of  using  the  inven- 
tion, which  it  is  meant  to  ascertain  and  secure.  To  strip 
the  inventor  of  this,  in  ordef  to  confer  upon  him  a  barren 
metaphysical  right,  is  not  to  reward,  but  to  mock  and  insult 
him.  It  may  be  a  good  scholastic  distinction,  but  it  is  very 
contradictory  to  common  sense  to  say  that  a  man's  right 
of  property  is  not  invaded  when  his  use  and  enjoyment  of 
it  are  interdicted.  Suppose  a  State  Legislature,  jealous  of 
the  overgrown  and  accumulating  wealth  of  some  unpopular 
landlord,  should,  on  the  common  pretext  of  the  public  good, 
release  his  tenants,  in  perpetuuin,  from  the  payment  of  rents, 
would  the  lord  of  the  manor  of  Clermont  consider  this  no 
invasion  of  the  right  of  property,  because  the  fee-simple, 
technically  speaking,  would  still  remain  vested  in  the  ob- 
noxious proprietor ". 

It  is  admitted  by  those  who  urge  the  doctrine  against 
which  I  am  contending,  that  the  states  cannot,  in  direct 
terms,  divest  or  take  away  an  exclusive  right  secured  by 
patent.  But  to  prohibit  the  exercise  of  such  a  right  within 
the  jurisdiction  of  a  state,  and  during  the  whole  period  for 
which  the  patent  has  been  granted,  is,  in  effect,  so  far  as 
the  power  of  the  state  extends,  to  take  away  the  right  itself 
There  may  be  a  difference  in  the  terms  employed,  but  the 
injury  to  the  patentee  is  in  both  cases  precisely  the  same. 
Nor  can  I  believe  that  the  Federal  Courts  would  listen  to 
the  verbal  distinction  by  which  such  a  usurpation  of  power 
IS  attempted  to  be  justified.  It  is  not  my  intention  to  deny 
that  the  states  may,  by  their  own  laws,  define  and  modify 
the  rights  of  property  within  their  respective  jurisdictions, 
ivhcn  such  rights  have  their  origin  in  the  state  or  nfunicipql 
law.  I  am  free  to  allow,  that  not  only  the  exercise  of  those 
rights  may,  by  the  san.  >  law,  bo  controlled  and  regulateil, 


APPENDIX.  399 

but  even  that  the  rights  themselves  may  be  annulled  and 
jlestroyed.  But  it  seems  to  have  been  forgotten  that  the 
right  of  a  patentee  is  not  derived  from  state  authority,  but 
lias  its  foundation  in  the  Constitution  and  laws  of  the  Uni- 
ted States.  As  the  state  prohibition  of  its  exercise,  in 
whatever  terms  expressed,  under  whatsoever  pretext  made, 
however  coloured  and  disguised,  would,  m  truth,  be  a  vio- 
lation of  the  right  itself,  I  am  forced  to  the  conclusion  that 
such  a  legislative  act  would  be  wholly  void,  as  repugnant 
to  that  law  which  is  confessed  by  all  to  be  supreme  and  far- 
amount. 

II.  I  censor  the  grant  to  Messrs.  Livingston  and  Ful- 
ton as  repugnant,  also,  to  that  clause  of  the  Constitution  of 
the  United  States  which  vests  in  Congress  the  power  "  to 
regulate  commerce  with  foreign  nations  and  among  the 
several  states ;"  which  power  I  regard  also  as  necessarily 
exclusive.  It  has  been  so  treated  by  every  department 
of  the  government,  and  by  all  classes  of  citizens,  in  every 
quarter  of  the  Union,  ever  since  the  adoption  of  the  Federal 
Constitution.  It  was  to  effect  this  transfer  of  power  that 
the  Constitution  owes  its  origin.  This  was  the  express  mo- 
tive for  assembling  the  Federal  Convention.  The  exclusive 
grant  of  this  power  was  essentially  requisite  to  give  to  our 
shipping  its  nationality  and  protection  ;  and  the  surrender 
of  this  power  was,  in  this  state,  the  most  formidable  obsta 
cle  to  the  ratification  of  the  new  Constitution.  It  possessed 
the  best  harbour  upon  the  Atlantic  coast ;  the  fertility  of  its 
western  territory  was  known  ;  the  rapid  increase  of  its  pop- 
ulation was  confidently  anticipated ;  the  tide  of  immigration 
had  begun  to  flow  in  upon  it ;  and  the  consequent  accession 
of  wealth  and  power  promised  from  these  sources  afforded 
the  most  seductive  objects  to  the  ambition  of  its  statesmen 
and  politicians.  These  were  the  causes,  indeed,  which 
combined  to  delay  and  resist  the  adoption  of  the  Constitu- 
tion in  tliis  state,  until  it  became  certain  that,  by  the  assent 
of  "ymie  states,'"  it  would  go  into  immediate  operation 
among  them,  while  this  state  and  the  other  recusant  mem- 
bers of  the  old  Confederacy  would  thus  be  deprived  of  the 
benefits  both  of  the  former  compact,  and  of  the  government 
by  which  it  was  superseded. 

It  remains  only  to  consider  in  what  manner.  Mr.  Gibbons 
may  best  avail  himself  of  the  rights  conferred  by  his  pat- 
ents and  coasting  license  under  the  Constitution  and  laws 
of  the  United  States.     My  advice  is,  that  he  send  his  boat 


400  APPENDIX. 

into  those  waters  between  this  state  and  New- Jersey 
which  are  claimed  as  lying  within  the  territorial  boundary, 
as  well  as  the  jurisdiction  of  the  former,  without  confining 
her  navigation  to  those  waters  which,  though  admitted  to 
be  within  the  limits  of  the  latter,  yet  over  which  New-York 
claims,  nevertheless,  exclusive  jurisdiction.  Nor  need  he 
i)e  deterred  by  fear  of  having  his  boats  seized  under  the  act 
of  1811,  authorizing  Messrs.  Livingston  and  Fulton  imme- 
diately to  seize  and  keep  possession  of  his  property  before 
condemnation,  and  without  trial ;  thus  giving  them  the  ben- 
efit of  an  execution  before  the  verdict  of  a  jurv  or  the  judg- 
ment of  a  court,  and  without  the  interventionlW'the  sherilf; 
for  I  hold  this  monstrous  provision  to  be  so  clearly  repug- 
nant to  that  fundamental  law  which  man  derives  from  his 
Creator,  and  which  is  paramount  to  all  human  authority, 
.  that  no  judge  on  earth  will  venture  to  execute  it. 

W.    A.    DUER. 
Albany,  July  14th,  1816. 


G,p. 

A.N  ORDINANCE  FOR  THE  GOVERNMENT  OF  THE  TERRITO- 

RY  OF  THE  UNITED  STATES  NORTHWEST  OF  THE  RIVER 

OHIO. 

Be  it  ordained  by  the  United  States  in  Congress  assembled^ 
that  the  said  territory,  for  the  purposes  of  temporary  gov- 
-ornment,  be  one  district ;  subject,  however,  to  be  divided 
into  two  districts,  as  future  circumstances  may,  in  the  opin 
ion  of  Congress,  make  it  expedient. 

Be  it  ordained  by  the  authorihj  aforesaid,  that  the  estates 
i)oth  of  resident  and  non-resident  proprietors  in  the  said  ter- 
••itory  dying  intestate,  shall  descend  to,  and  be  distributed 
imong  their  children,  and  the  descendants  of  a  deceased 
child,  in  equal  parts  ;  the  descendants  of  a  deceased  child  or 
grandchild  to  take  the  share  of  their  deceased  parent  in 
equal  parts  among  them  ;  and  where  there  shall  be  no  chil 
(Iren  or  descendants,  then  in  equal  parts  to  the  next  of  kin, 
In  equal  degree ;  and  among  collaterals,  the  children  of  a 
deceased  brother  or  sister  of  the  intestate  shall  have  in  equal 
parts  among  them  their  deceased  parents'  share  ;  and  there 
shall  in  no  case  be  a  distinction  between  kindred  of  the 
whol**  and  half  blood  ;  saving  in  all  cases  to  the  widow  of  the 
intestate  her  third  part  of  the  real  estate  for  life,  and  one 
third  part  of  the  personal  estate ;  and  this  law  relatiye  to 


APPENDIX.  401 

descents  and  dower  shall  remain  in  full  force  until  altered 
by  the  Legislature  of  the  district.  And  until  the  governor 
and  judges  shall  adopt  laws  as  hereinafter  mentioned,  es- 
tates in  the  said  territory  may  be  devised  or  bequeathed  by 
wills  in  writing,  signed  and  sealed  by  him  or  her  in  whom 
the  estate  may  be  (being  of  full  age),  and  attested  by  three 
witnesses  ;  and  real  estates  may  be  conveyed  by  lease  and 
release,  or  bargain  and  sale,  signed,  sealed,  and  delivered 
by  the  person,  being  of  full  age,  in  whom  the  estate  may  be, 
and  attested  by  two  witnesses,  provided  such  wills  be  duly 
proved,  and  such  conveyances  be  acknowledged,  or  the  ex- 
ecution thereof  duly  proved,  and  be  recorded  within  one 
fear  after  proper  magistrates,  courts,  and  registers  shall  be 
appointed  for  that  purpose ;  and  personal  property  may  be 
transferred  by  delivery ;  saving,  however,  to  the  French 
and  Canadian  inhabitants,  and  other  settlers,  of  the  Kaskas- 
ties,  Saint  Vincent's,  and  the  neighbouring  villages,  who 
^ave  heretofore  professed  themselves  citizens  of  Virginia, 
\heir  laws  and  customs  now  in  force  among  them,  relative 
10  the  descent  and  conveyance  of  property. 

Be  it  ordained  by  the  authority  aforesaid^  that  there  shall 
be  appointed  from  time  to  time,  by  Congress,  a  governor, 
whose  commission  shall  continue  in  force  for  the  term  of 
three  years,  unless  sooner  revoked  by  Congress :  he  shall 
reside  in  the  district,  and  have  a  freehold  estate  therein  in 
^ne  thousand  acres  of  land,  w^hile  in  the  exercise  of  his  of- 
fice. 

There  shall  be  appointed  from  time  to  time,  by  Congress, 
a  secretary,  whose  commission  shall  continue  in  force  for 
four  years,  unless  sooner  revoked ;  he  shall  reside  in  the 
district,  and  have  a  freehold  estate  therein  in  five  hundred 
acres  of  land,  while  in  the  exercise  of  his  office  :  it  shall  be 
his  duty  to  keep  and  preserve  the  acts  and  laws  passed  by 
the  Legislature,  and  the  public  records  of  the  district,  and 
the  proceedings  of  the  governor  in  his  executive  department ; 
and  transmit  authentic  copies  of  such  acts  and  proceedings, 
every  six  months,  to  the  secretary  of  Congress  :  there  shalJ 
also  be  appointed  a  court,  to  consist  of  three  judges,  any  two 
of  whom  to  form  a  court,  who  shall  have  a  common  law  ju- 
risdiction, and  reside  in  the  district,  and  have  each  therein 
a  freehold  estate  in  five  hundred  acres  of  land,  while  in  the 
exercise  of  their  offices  ;  and  their  commissions  shall  con- 
tinue in  force  during  good  behaviour. 

The  governor  and  judges,  or  a  majority  of  them,  shali 
Hh 


402  APPENDIX. 

adopt  and  publish  in  the  district  such  laws  of  the  original 
states,  criminal  and  civil,  as  may  be  necessary  and  best 
suited  to  the  circumstances  of  the  district,  and  report  them 
to  Congress  from  time  to  time  ;  which  laws  shall  be  in  force 
in  the  district  until  the  organization  of  the  General  Assembly 
therein,  unless  disapproved  of  by  Congress ;  but  afterward 
the  Legislature  shall  have  authority  to  alter  them  as  they 
shall  think  fit. 

The  governor  for  the  time  being  shall  be  commander- 
in-chief  of  the  militia,  appoint  and  commission  all  officers 
in  the  same  below  the  rank  of  general  officers  ;  all  general 
Dfficers  shall  be  appointed  and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  Geneial  Assembly,  the 
governor  shall  appoint  such  magistrates  and  other  civil  offi- 
cers, in  each  county  or  township,  as  he  shall  find  necessary 
for  the  preservation  of  the  peace  and  good  order  in  the  same : 
after  the  General  Assembly  shall  be  organized,  the  powers 
and  duties  of  magistrates  and  other  civil  officers  shall  be 
regulated  and  defined  by  the  said  assembly ;  but  all  magis- 
trates and  other  civil  officers  not  herein  otherwise  directed 
shall,  during  the  continuance  of  this  temporary  government, 
be  appointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be 
adopted  or  made  shall  have  force  in  all  parts  of  the  district, 
and  for  the  execution  of  process,  criminal  and  civil,  the  gov- 
ernor shall  make  proper  divisions  thereof;  and  he  shall 
proceed  from  time  to  time,  as  circumstances  may  require, 
to  lay  out  the  parts  of  the  district  in  which  the  Indian  titles 
shall  have  been  extinguished  into  counties  and  townships, 
subject,  however,  to  such  alterations  as  may  thereafter  be 
made  by  the  Legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabi- 
tants, of  full  age,  in  the  district,  upon  giving  proof  thereof 
to  the  governor,  they  shall  receive  authority,  with  time  and 
j)lace,  to  elect  representatives  from  their  counties  or  town- 
ships to  represent  them  in  the  General  Assembly  ;  provided 
that  for  every  five  hundred  free  male  inhabitants,  there  shall 
be  one  representative,  and  so  on  progressively  with  the 
number  of  free  male  inhabitants  shall  the  right  of  represent- 
ation increase,  until  the  number  of  representatives  shall 
amount  to  twenty-five  ;  after  which  the  number  and  propor- 
tion of  representatives  shall  be  regulated  by  the  Legislature : 
provided  that  no  person  be  eligible  or  qualified  to  act  as  a 
representative  unless  he  shall  have  i)een  a  citizen  of  one  of 


APPENDIX.  403 

the  United  States  three  years,  and  be  a  resident  m  the  dis- 
trict, or  unless  he  shall  have  resided  in  the  district  three 
years ;  and  in  either  case,  shall  likewise  hold  in  his  own 
right,  in  fee-simple,  two  hundred  acres  of  land  within  the 
same :  provided,  also,  that  a  freehold  in  fifty  acres  of  land 
in  the  district,  having  been  a  citizen  of  one  of  the  states, 
and  being  resident  in  the  district,  or  the  like  freehold,  and 
two  years  residence  in  the  district,  shall  be  necessary  to 
qualify  a  man  as  an  elector  of  a  representative. 

The  representatives  thus  elected  shall  serve  for  the  term 
of  two  years  ;  and  in  case  of  the  death  of  a  representative, 
or  removal  from  office,  the  governor  shall  issue  a  writ  to 
the  county  or  township  for  which  he  was  a  member  to 
elect  another  in  his  stead,  to  serve  for  the  residue  of  the 
term. 

The  General  Assembly,  or  Legislature,  shall  consist  of  the 
governor,  legislative  council,  and  a  house  of  representatives. 
'I'he  legislative  council  shall  consist  of  five  members,  to 
continue  in  oflice  five  years,  unless  sooner  removed  by  Con- 
gress, any  three  of  whom  to  be  a  quorum ;  and  the  mem- 
bers of  the  council  shall  be  nominated  and  appointed  in  the 
following  manner,  to  wit :  As  soon  as  representatives  shall 
be  elected,  the  governor  shall  appoint  a  time  and  place  for 
them  to  meet  together,  and  when  met,  they  shall  nominate 
ten  persons,  residents  in  the  district,  and  each  possessed  of 
a  freehold  in  five  hundred  acres  of  land,  and  return  their 
names  to  Congress ;  five  of  whom  Congress  shall  appoint 
and  commission  to  serve  as  aforesaid  ;  and  whenever  a  va- 
cancy shall  happen  in  the  council,  by  death  or  removal  from 
oflice,  the  House  of  Representatives  shall  nominate  two  per 
sons,  qualified  as  aforesaid  for  each  vacancy,  and  return 
their  names  to  Congress,  one  of  whom  Congress  shall  ap- 
point and  commission  for  the  residue  of  the  term.  And  - 
every  five  years,  four  months  at  least  before  the  expiration 
of  the  time  of  service  of  the  members  of  council,  the  said 
house  shall  nominate  ten  persons,  qualified  as  aforesaid,  and 
return  their  names  to  Congress  ;  five  of  whom  Congress 
shall  appoint  and  commission  to  serve  as  members  of  the 
council  five  years,  unless  sooner  removed.  And  the  gov- 
ernor. Legislative  Council,  and  House  of  Representatives 
shall  have  authority  to  make  laws,  in  all  cases,  for  the  good 
government  of  the  district,  not  repugnant  to  the  principles 
and  articles  in  this  ordinance  established  and  declared.  An(J 
all  bills  having  passed  by  a  majority  in  the  house,  and  by  a 


404  APPENDIX. 

majority  in  the  council,  shall  be  referred  to  the  governor  loi 
his  assent ;  but  no  bill  or  legislative  act  whatever  shall  be 
of  any  force  without  his  assent.  The  governor  shall 'have 
power  to  convene,  prorogue,  and  dissolve  the  General  Assem- 
bly, when  in  his  opinion  it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and 
such  other  officers  as  Congress  shall  appoint  in  the  district, 
shall  take  an  oath  or  affirmation  of  fidelity,  and  of  office  ; 
the  governor  before  the  president  of  Congress,  and  all  other 
officers  before  the  governor.  As  soon  as  a  legislature  shall 
be  formed  in  the  district,  the  council  and  house,  assembled 
in  one  room,  shall  have  authority,  by  joint  ballot,  to  elect  a 
delegate  to  Congress,  who  shall  have  a  seat  in  Congress, 
with  a  right  of  debating,  but  not  of  voting  during  this  tem- 
porary government. 

And  for  extending  the  fundamental  principles  (^f  civil  and 
religious  liberty,  which  form  the  basis  whereon  these  repub- 
lics, their  laws  and  constitutions,  are  erected ;  to  fix  and 
establish  those  principles  as  the  basis  of  all  laws,  constitu 
tions,  and  governments,  which  forever  hereafter  shall  be 
formed  in  the  said  territory ;  to  provide  also  for  the  estab- 
lishment of  states,  and  permanent  government  therein,  and 
for  their  admission  to  a  share  in  the  Federal  councils, 
on  an  equal  footing  with  the  original  states,  at  as  early  pe- 
riods as  may  be  consistent  with  the  general  interest : 

It  is  hereby  ordained  and  declared,  by  the  authority  aforesaid^ 
that  the  following  articles  shall  be  considered  as  articles 
of  compact  between  the  original  states  and  the  people  and 
states  in  the  said  territory,  and  forever  remain  unalterable, 
unless  by  common  consent,  to  wit : 

Article  I.  No  person  demeaning  himself  in  a  peacea[>id 
and  orderly  manner,  shall  ever  be  molested  on  account  of 
his  mode  of  worship  or  rehgious  sentiments  in  the  said  ter- 
ritory. 

Art.  II.  The  inhabitants  of  the  said  territory  shall  always 
be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus,  and 
of  a  trial  by  jury  ;  of  a  proportionate  representation  of  the 
people  in  the  Legislature,  and  of  judicial  proceedings  accord- 
ing to  the  course  of  the  common  law.  All  persons  shall  be 
bailable,  unless  for  capital  offences,  where  the  proof  shall 
be  evident,  or  the  presumption  great.  All  fuies  shall  be 
moderate,  and  no  cruel  or  unusual  punishments  shall  be 
ui dieted.  No  man  shall  be  deprived  of  his  liberty  or  ])rop- 
♦'ily    but  by  tlic  judgment  of  his  peers   or  the  law  f»f  the 


APPENDIX.  405 

fand ;  and  should  the  public  exigencies  make  it  necessary, 
for  the  common  preservation,  to  take  any  person's  property, 
or  to  demand  his  particular  services,  full  compensation  shall 
be  made  for  the  same.  And  in  the  just  preservation  of 
rights  and  property,  it  is  understood  and  declared  that  no 
law  ought  ever  to  be  made,  or  have  force  in  the  said  terri- 
tory, that  shall  in  any  manner  whatever  interfere  with,  or 
aflfect  private  contracts  or  engagements,  bona  fide,  and  with- 
out fraud  previously  formed. 

Art.  III.  Religion,  morality,  and  knowledge  being  neces- 
sary to  good  government  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be  en- 
couraged. The  utmost  good  faith  shall  always  be  observed 
towards  the  Indians  ;  their  lands  and  property  shall  never 
be  taken  from  them  without  their  consent ;  and  in  their 
property,  rights,  and  liberty,  they  never  shall  be  invaded  or 
disturbed,  unless  in  just  and  lawful  wars  authorized  by 
Congress  ;  but  laws  founded  in  justice  and  humanity  shall 
from  time  to  time  be  made,  for  preventing  wrongs  being 
done  to  them,  and  for  preserving  peace  and  friendship  with 
them. 

Art.  IV.  The  said  territory,  and  the  states  which  may  be 
formed  therein,  shall  forever  remain  a  part  of  this  confeder- 
acy of  the  United  States  of  America,  subject  to  the  Articles 
of  Confederation,  and  to  such  alterations  therein  as  shall 
be  constitutionally  made,  and  to  all  the  acts  and  ordinan- 
ces of  the  United  States  in  Congress  assembled  conforma- 
ble thereto.  The  inhabitants  and  settlers  in  the  said  terri- 
tory shall  be  subject  to  pay  a  part  of  the  Federal  debts,  con- 
tracted or  to  be  contracted,  and  a  proportional  part  of  the 
expenses  of  government,  to  be  apportioned  on  them  by 
Congress,  according  to  the  same  common  rule  and  measure 
by  which  apportionments  thereof  shall  be  made  on  the  other 
states ;  and  the  taxes  for  paying  their  proportion  shall  be 
laid  and  levied  by  the  authority  and  direction  of  the  legisla- 
tures of  the  district  or  districts  or  new  states,  as  in  the 
original  states,  within  the  time  agreed" upon  by  the  United 
States  in  Congress  assembled.  The  legislatures  of  those 
districts  or  new  states  shall  never  interfere  with  the  pri- 
mary disposal  of  the  soil  by  the  United  States  in  Congress 
assembled,  nor  with  any  regulations  Congress  may  find  ne 
cessary  for  securing  the  title  in  such  soil  to  the  bona  fide 
purchasers.  No  tax  shall  be  imposed  on  lands  the  property 
of  the  United  States :  and  in  no  case  shall  non-resident 


406  APPENDIX. 

proprietors  be  taxed  higher  than  residents.  The  navigable 
waters  leading  into  the  Mississippi  and  St.  Lawrence,  and 
the  carrying  places  between  the  same,  shall  be  common 
highways,  and  forever  free,  as  well  to  the  inhabitants  of  the 
said  territory  as  to  the  citizens  of  the  United  States,  and 
those  of  any  other  states  that  may  be  admitted  into  the  Con- 
federacy, without  any  tax,  impost,  or  duty  therefor. 

Art.  V.  There  shall  be  formed  in  the  said  territory  not 
less  than  three,  nor  more  than  five  states  ;  and  the  bounda- 
ries of  the  states,  as  soon  as  Virginia  shall  alter  her  act  of 
cession,  and  consent  to  the  same,  shall  become  fixed  and 
established  as  follows,  to  wit :  The  western  state  in  the 
said  territory  shall  be  bounded  by  the  Mississippi,  the  Ohio, 
and  Wabash  Rivers  ;  a  direct  line  drawn  from  the  Wabash 
and  Post  Vincent's  due  north  to  the  territorial  hne  between 
the  United  States  and  Canada ;  and  by  the  said  territorial 
line  to  the  Lake  of  the  Woods  and  Mississippi.  The  middle 
state  shall  be  bounded  by  the  said  direct  line,  the  Wabash 
from  Post  Vincent's  to  the  Ohio  ;  by  the  Ohio,  by  a  direct 
line  drawn  due  north  from  the  mouth  of  the  Great  Miami 
to  the  said  territorial  line,  and  by  the  said  territorial  line. 
The  eastern  state  shall  be  bounded  by  the  last-mentioned 
district  line,  the  Ohio,  Pennsylvania,  and  the  said  territori- 
al line  :  Provided,  however,  and  it  is  farther  understood  and 
declared,  that  the  boundaries  of  these  three  states  shall  be 
subject  so  far  to  be  altered,  that  if  Congress  shall  hereafter 
find  it  expedient,  they  shall  have  authority  to  form  one  or 
two  states  in  that  part  of  the  said  territory  which  lies  north 
of  an  east  and  west  line  drawn  through  the  southerly  bend 
or  extreme  of  Lake  Michigan.  And  whenever  any  of  the 
said  states  shall  have  sixty  thousand  free  inhabitants 
therein,  such  state  shall  be  admitted,  by  its  delegates,  into 
the  Congress  of  the  United  States,  on  an  equal  footing  with 
the  original  states,  in  all  respects  whatever,  and  shall  be  at 
liberty  to  form  a  permanent  constitution  and  state  govern- 
ment :  Provided  the  constitution  and  government  so  to  be 
formed  shall  be  republican,  and  in  conformity  to  the  princi- 
ples contained  in  these  articles ;  and  so  far  as  it  can  be 
consistent  with  the  general  interest  of  the  confederacy, 
such  admission  shall  be  allowed  at  an  earlier  period,  and 
when  there  may  be  a  less  number  of  free  inhabitants  in  the 
state  than  sixty  thousand. 

Art.  VI.  There  shall  be  neither  slavery  nor  involuntary 
servitude  in  the  said  territory,  otherwise  than  in  punish- 


APPENDIX.  407 

>nent  of  crimes,  whereof  the  party  shall  have  heen  duly  con- 
victed :  Provided,  always,  that  any  person  escaping  into  the 
same,  from  whom  labour  or  service  is  lawfully  claimed  in 
any  one  of  the  original  states,  such  fugitive  may  be  lawfully 
reclaimed,  and  conveyed  to  the  person  claiming  his  or  her 
lal?our  or  service  as  aforesaid. 

Dope  by  the  United  States,  in  Congress  assembled,  the 
thirteenth  day  of  July,  in  the  year  of  our  Lord  one  thou- 
sand seven  hundred  and  eighty-seven,  and  of  their  sover 
oi^nty  and  independence  the  twelfth. 

WILLIAM  GRAYSON,  Chairman. 
Charles  Thomson,  Secretary. 


INDEX. 


Page 

Admiralty  JuRisDtoTiON. 
Scv  District  Courts,  Judi- 
cial Power,  &c. 

Admission  of  States. 
Power  of  admitting  new  states  262 
Construction  given  to  it    .        .  269 

Aliens. 
Who  so  termed  .  .  .233 
[nducements  for  them  to  be- 
come citizens  .  .  .  234 
Mode  prescribed  .  .  .  ib. 
Rights  acquired  thereby  .  .  ib. 
See  Naturalization. 

Alleoianck. 
Nature  of  that  due  by  citizens 
of  the  United  States     .        .  232 

Ambassadors. 
By  whom  appointed         .        .  104 
In  what  courts  they  may  sue 

and  be  sued  .  .  .  128-130 
Power  of  sending  and  receiving  159 
Infringements  on  their  rights, 

how  punishable     .        .        .  195 

Amendment  of  Constitution. 
Necessity  of  such  power  .  .  267 
Mode  of  exercising  it  .  .  268 
Restrictions  upon  it  .  .  .  ib. 
Amendments  adopted  .  .  269 
Their  nature  and  design  .  270 

Effect  and  construction  of  one     ib. 

Appeals. 
See  Judicial  Power,  Supreme 
Court,  &c. 

Appointments. 

Power  of,  where  vested    .  .  104 

Vacancies,  how  supplied  .  105 

What  vacancies  intended  .    ib. 

Arbiter. 
Seo  Judicial  Power,  Supreme 
Court.  &e. 


Army  and  Navy. 
Commander-in-chief  of  .  .101 
Power  of  raising  and  equipping  154 
Necessity  and  extent  of  power  150 
Restrictions  on  the  states  re- 
lating to  them  .  .  ,  ib. 
upon  Congress        157 

Arsenals  and  Forts. 
See  Local  Jurisdiction. 
Arts  (useful). 
See  Science. 

Attainder. 
See  Bills  of  Attainder 

Authors  and  Invertors 
See  Science. 

Auxiliary  Powers 
Power  to  make  laws  "neces- 
sary and  proper"  to  execute 
other  powers  .        .        .  JOfi 

Foundation  and  meaning  of  it  ib. 
Judicial  construction  of  it  .  312 
Implied  powers,  how  delegated  314 
See  Powers  of  Government. 

Bane. 

See  Corporations. 

Bankruptcy. 

Power  to  establish  uniform  sys- 
tem          235 

Why  vested  in  National  (Jov- 
ernment         ....    ib. 

Object  of  bankrupt  laws  .        .    ib. 

How  distinguished  from  insol- 
vent laws       ....  236 

Bankruptcy  defined  .        .        .    ib. 

To  what  persons  confined        .    ib. 

Nature  of  power  relative  to  it      ib. 

Power  retained  by  states  .  237 

State  laws  cannot  discharge 
from  contracts,  except  in  cer- 
tain cases       ....  238 

Why  no  uniform  system  \xam  "n 


410 


INDEX. 


Page 

Bills  of  Attainder. 

Prohibited  to  states  .        .  .  273 

Delinitions  of     .        .        .  .    ih. 

To  what  cases  confined    .  .    ib. 

Dills  of  Credit. 

Their  issue  prohibited  to  states  273 

Reasons  therefor       .        .        .    ib. 

Judicial    construction    of    the 

power  of  Congress  in  relation 

to  them 275 

Borrowing  Money. 
Power  of,  where  vested   .        .179 
How  conferred  .        .        .    ib. 

Extent  and  construction   .        .    ib. 

Captures. 
Rules  concerning       .        .        .  153 
Power  of  Congress   to   make 

them ib. 

Nature  and  extent  of  the  power    ib. 
Judicial  construction  of  it         .  154 

Circuit  Courts. 

Organization  and  sessions         .  140 

Legislative  regulations  of  their 
proceedings    ....  141 

Original  and  exclusive  jurisdic- 
tion         ib. 

Tn  regard  to  crimes  and  offences    ib. 

Original  and  concurrent  juris- 
diction     ib. 

In  civil  suits      ....    ib. 

Jurisdiction  as  to  copy-rights 
and  patents    ....  142 

(n  cases  where  United  States 
are  parties      ....    ib. 

A  p|)ellate  jurisdiction       .        .    ib. 

I  n  what  sense  "Inferior  Courts"    ib. 

Proceedings,  how  to  be  inter- 
preted      143 

Citizens. 
Who  are  citizens  of  U.  S.         .  231 
Who  native  citizens  .        .  232 

Persons  born  within  the  U.  S., 

who  are  not  citizens      .        .  233 
Persons  born  abroad,  who  are      ib. 
See  Aliens,  Allegiance,  Nat- 
uralization, &c. 

Coasting  License. 
See  Commerce. 

Coin  and  Coinino. 
8cc  Money,  Powers  of  Gov- 
ernment, &c. 


Fsge 

Commerce. 

Power  of  regulating  it  with  for- 
eign nations    ....  196 

Where  and  how  vested    .        ,    ib. 

Its  nature  and  necessity  .        .    ib. 

To  what  it  extends  .        .        .197 

With  what  exception       .        .    ib. 

Judicial  construction  of  it  ib. 

How  far  it  comprehends  navi- 
gation within  a  state     .  198 

To  what  vessels  it  extends  203 

How  far  it  authorizes  sale  of 
imported  articles    .        .        .  206 

States,  how  far  restricted  from 
preventing  such  sale     .        .    ib 

Extends  incidentally  to  other 
and  what  objects    .        .        .20'* 

Applied  to  protection  of  domes- 
tic industry    ....    ib. 

To  prohibition  of  slave-trade      206 

Power  of  regulating  commerce 
among  the  states    .        .        .213 

Its  general  objects  and  extent      iG 

How  far  restricted     .        .        .  21S 

What  commerce  reserved  to 
states ib. 

When  power  of  Congress  may 
be  exercised  within  a  strjte      214 

Judicial  construction  of  this 
power ib 

Applied  to  incidental  objects    .    ib. 

Restrictions  on  states       .        .    ib. 

Power  of  regulating  Indian 
trade 215 

How  vested  and  interpreted     .  220 

Extent  of  its  operation      .        .    ib. 

Trade  and  intercourse  with  In- 
dians by  individuals,  how  re 
strained ib. 

See  Indian  Tribes. 

Common  Arbiter. 

.See  Judicial  Power,  Supreme 
Court,  &c. 

Common  Law. 

How  far  established  in  the  col- 
onies        50 

Benefit  of,  claimed  by  Congress    ib. 

Protects  absolute  rights    .        .    51 

Regulated  relative  rights  of  col- 
onists    .  .        .        .    ib 

Punished  offences  against  pub- 
lic justice        .        .        .        ,    ib 

How  far  adopted  by  states       .    52 

Basis  of  their  laws  .        .    ib. 

State  Constitutions  made  in  rcf- 
erenco  to  its  validity    .  ib 


INDEX, 


411 


lu  existence  presupposed    by 

Constitution  of  U.  S.  .  .  52 
Referred  to  for  explanation  of 

its  powers  and  provisions  .  54 
How  fur  Common  Law  in  force 

under  the  Constitution  of  U. 

S lb. 


Congress. 

IIow  constituted        .        .        .62 

Disabilities  of  members     .        .  G6 

Their  privileges  and  powers    .  ib. 

Elections,  returns,  and  qualifi- 
cations      ib. 

In  what  manner  these  powers 
are  exercised  .        .        .67 

Qiioruin  of  each  HouSe    .        .  ib. 

Adjournments  and  journals     .  ib. 

Freedom  of  debate    .        .        .  ib. 

Time  and  manner  of  assem- 
bling         80 

Time  and  manner  of  adjourning  81 

Period  of  dissolution          .        .  ib. 

Sec  Legislative  Power, 
House  of  Representa- 
tives, Senate,  &.c. 

Constitution. 

Definition  of  one       .        .        •  43 

Oriuinofthem  ....  ib. 

Where  they  may  exist     .        .  ib. 
•  When  derived  from  act  of  the 
Government  .        .        .        .43 

When  from  written  compact   .  ib. 

Dirterent  modes  of  framing  one  ib. 

Which  most  practicable  .        .  ib. 

Which  preferable     .        .        .  ib. 

How  obtained    ....  ib. 

Theory  of  a  Republican  Ctmsti- 

tution 44 

Advantages  of  a  written  one   .  ib. 

Evils  of  a  traditionary  one        .  45 

Reasons  for  preferring  one  writ- 
ten         .        .        .        .        .  ib. 

Constitution  of  United  States. 

On  what  foundation  erected     .  47 

On  what  principles  formed      .  ib. 

From  what  materials        .        .  48 

In  what  manner  adopted          .  ib. 

Fnr  what  objects  designed        .  54 

Effect  of  its  adoption   on  the 

states ib. 

Elfect  of  its  adoption   on   the 

former  Confederation    .        .  ib. 

Principle  of  representation,  how 

applied  in  it    .        .        .        .  ib. 

Powers   of  Government,   liow 

delegated  by  it        .  55 


PapB 
How  to  be  examined  .  .  £5 
Constitutional  Law  defined     42 

Constitutions  (State). 
Foundations,  how  laid      .        .    47 
Source  of  their  authority  .    43 

On  what  principle  founded      .    ib. 
Powers  of  Government,   how 
vested    and    distributed    by 

them 43 

Former  civil  and  municipal  in- 
stitutions, how  far  retained       50 
Natural  and  moral   rights  se 

cured 51 

See     State      Governments, 
States,  &c. 

Consuls  and  Vice-consuls. 
By  whom  appointed  .        .  104 

In  what  Courts  they  may  sue 

and  be  sued  or  prosecuted    128-9 
See  Judicial  Power. 

Contracts. 
See  Laws  impairing  Contracts. 

Copy-right. 
See  Science. 

Corporations. 
Grants,  of  irrevocable       .        .  262 
Are  Contracts  within  the  mean- 
ing and  protection  of  the  Con- 
stitution         .        .        .        .    ib 
Creation  of,  incident  to  sover- 
eignty      315 

Nature  and  extent  of  power         ib. 
See  Auxiliary  Powers,  Laws 
impairing  Contracts,  &c. 

Counterfeiting. 
Power  of  punishing  .        .        .221 
To  what  objects  it  extends       .    ib 
Nature  and  necessity  of  power     ib 
See  Powers  of  Government. 
Courts. 
See  Impeachments, 
Judicial  Power, 
Circuit  Courts, 
District  Courts, 
State  Courts,  and 
Magistrates,  and 
Supreme  Court. 
Debts. 
See  Tender  Laws. 
Declaration  of  Independknck 

Sec  iNDEPEJi^ENCK. 


412 


INDEX. 


District  Courts. 


Page 


How  organized  .        .        .143 

Stated  and  special  terms  .    ib. 

Exclusive  jurisdiction  .  .  ib. 
Original  jurisdiction  .        .    ib. 

Admiralty  jurisdiction  .  .  ib. 
Concurrent    jurisdiction    with 

Circuit  Courts  .  .  .  ib. 
Jurisdiction  exclusive  in  certain 

cases  of  State  Courts  .  .  ib. 
With  respect  to  patents  .  .  144 
Power  of  judge  at  chambers  .  ib. 
See  Judicial  Power. 

District  of  Columbia. 
Seat  of  Government  .  .  258 
Courts  organized  therein  .  .  ib. 
Privileges  of  its  inhabitants  .  259 
Their  disabilities  .  .  .  ib. 
See  Local  Jurisdiction. 

Dock  Yards. 
See  Local  Jurisdiction. 

Domestic  Industry. 
Encouraged  by  protecting  du- 
ties          173 

Upon  what  construction  .        .  174 
By  whom  question  of  Constitu- 
tionality must  be  decided        176 
Commercial  restrictions  applied 

to  the  purpose  .  .  .197 
To  what  extent,  and  upon  what 

ground  of  construction  .        .    ib. 
How  point  must  be  decided     .    ib. 
See   Commerce,    Powers    of 
Government,    and    Taxa- 
tion and  Taxes. 

DUTIFS. 

See  Imposts  and  Duties,  Tax- 
ation AND  Taxes,  &c. 

Electors  (or  President  and 

Vice-president). 
How  chosen  .  .  .  .90 
Number  in  each  s*ate  .  .  ib. 
Requisite  qualifications  .  .  ib. 
At  what  time  to  be  chosen  .  91 
Time  for  their  assembling  .  ib. 
Mode  of  their    proceeding  to 

election  .  ...     92 

I>jl.tA  &ubacqi»f  nt  to  election       ib. 

See  PJIB8IDENT  OF  U.  S. 

r.irprrTivE  Power 
(•euer.i)  functions  44 


81 


Objects  of  this  department 
Extent  of  discretionary  power 
Obligation  to  obey  and  enforce 

laws 

Requisite  qualities    . 
Power  apportioned  to  it    . 
Advantage  of  its  unity      . 
Evils  of  its  division  or  plurality 
How  vested  by  Constitution  of 

U.  S.       .        . 
See  President  of  U.  S. 

Expatriation. 
Right   of.   denied   by  English 

law 232 

How  regarded  by  writers  on 

public  law     ....    ib. 
How  far  admitted  by  State  Con 

stitutions        ....    ib. 
How  far  settled  in  Courts  of 

U.  S 233 

See  Naturalization,  &c. 

Ex  POST  facto  Laws. 
Prohibited  to  states  ,        .  277 

Definition  and  meaning    .        .    ib 

Felonies  (on  the  Sea). 
Power  to  define  and  punish  .  191 
To  what  they  amount  in  eflect  193 
To  what  extent  declared  piracy,  • 
and  punished  as  such  .  .  ib. 
Power,  how  far  exclusive  .  104 
See  Piracy. 

Fleets. 
See  Army  and  Navy. 
Forts. 
See  Local  Jurisdiction 
Government. 
Different  forms  of     ...    42 
Powers  of,  how  divided    .  44 

How  far  distinct  .  .  .45 
Separate  departments  .  .  ib 
Provincial  governments  .  .  4'J 
How  organized  .        .        .    ib 

See  Constitution  of  U.  S., 
Constitutions  (State), 
Powers  of  Government, 
State  Governments. 

Guarantees. 
Nature,  terms,  and  effect  of  tho 

gunranlees  to  the  states  CIGI 

Tbpir  r^(>np<'i'>tv  find  extent  ib. 


INDEX. 


4ia 


Page 

Republican  form  of  Govern- 
ment        265 

Protection  from  invasion          .  266 
from  domestic  vio- 
lence   ib. 

When  to  be  enforced        .        .  267 

Habeas  Corpus. 
Benefit  of  writ  secured      .        .    51 
By  whom  to  be  allowed   .        .  140 

House  of  Representatives. 

How  constituted        .        .        .66 

On  what  principle  of  represent- 
ation        ib. 

Members,  how^  chosen      .        .    ib. 

For  what  term  .        .        .    ib. 

•Qualifications  of  electors         .    ib. 

of  members        .     67 

How  apportioned  among  the 
states 68 

Number  of  representatives       .    ib. 

/?af/o  of  representation     .        .    69 

Exclusive  p»wers  of  House  of 
Representatives     .        .        .71 

Money  bills        .        .        .        .72 

When  to  choose  President  of 
U.  S 93 

Mode  of  conducting  election    .    ib. 

See  Congress,  Legislative 
Power,  &c. 

Impeachments. 
Nature  of  power,  and  where 

vested 71 

Court  of  Impeachments    .        .  76 

Impeachments,  whence  derived  ib. 

Senate,  why  selected  as  court .  ib. 

Objects  of  the  jurisdiction         .  77 

Causes  of  impeachment    .        .  ib. 

Persons  liable  thereto       .        .  ib. 
Construction  of  Constitution  in 

relation  to  them     .        .        .  ib. 

Quorum  of  the  court         .        .  ib. 

President  of  the  court       .        .  ib. 

When  chief-justice  presides    .  ib. 

Power  of  presiding  officer         .  ib. 
•See  Judicial  Power,  Senate, 

&c. 

Implied  Powers. 
S'cc'' Auxiliary  Powers,  Pow- 
ers OF  Government,  &c. 

Imposts  and  Duties. 
How  (ar  prohibited  to  states, 
reason  and  necessity  of  ■*        300 


Page 
Judicial  construction         .        .  301 
See  Powers  of  Government, 
Taxation,  and  Taxes. 

Independence. 
Effect  of  its  declaration    .        .    48 
As  to  persons  born  previously    231 
As  to  citizenship       .        .        .    ib. 
As  to  British  subjects       .        .  232 

Indian  Tribes. 

Intercourse  with,  regulated       .  215 

What  relations  acluiowledged    216 

Those  residing  within  limits  of 
U.  S.,  how  considered   .        .  217 

How  distinguished  from  "for- 
eign nations"  .        .        .    ib. 

Relations  with  European  dis- 
coverers, how  determined    .  219 

How  far  same  principle  adopted 
by  U.  S ib. 

Practical  results        .        .        .  220 

How  considered  in  treaties  and 
laws ib. 

Their  territory,  how  regarded       ib. 

See  Commerce,  Judicial  Power 
&c. 

Internal  Improvements. 
Right  of  appropriating  money 
for,  claimed  under  what  pow- 
er     222 

How  far  admitted     .        .        .  224 
See  Commerce,  Postoffices, 
and  postroads,  &c. 

Interpretation  of  Constitu- 
tion. 
Right  of  interpreting  Constitu- 
tion, where  vested         .        .  121 
Final  interpreter  provided         .  333 
See  Judicial  Power, 
Supreme  Court, 
Supreme  Law. 

Judicial  Power. 
General  functions  and  objects  .  44 
Nature  of  the  power  .  .110 
Effect  of  its  omission  .  .  11 J 
How  far  auxiliarj'  to  executive  ib. 
How  far  it  partakes  of  legisla- 
tive power  ....  ib. 
Objects  of  this  department  .  ib. 
Coextensive    with    legislative 

power ib 

How  recognised  in  Constitution  ib. 

How  vested       .        .        .  112 


414 


INDEX. 


rage 

In  \vha.t  manner  constitutea  .  112 
Appointment  of  judges  .  .  ib. 
Tenure  of  their  offices  .  .113 
x\dvantages  of  such  tenure  .  ib. 
Provision  for  their  support  .  115 
Necessity  of  their  independence  ib. 
Responsible  for  misconduct  .116 
Objects  of  jurisdiction  .  .  117 
Necessity  and  advantages  of  it  119 
As  to  cases  arising  under  Con- 
stitution ....  ib. 
As  to  cases  arising  under  the 

laws  of  tlie  U.  S.  .  .  .  ib. 
As  to  treaties  ....  ib. 
As  to  interpreting  Constitution  121 
Objects  of  separating  judicial 

from  other  departments  .  124 
Power  over  Constitutions  and 

laws  of  the  states  .        .    ib. 

Power  of  final  interpretation  .  ib. 
Distribution  of  jurisdiction  .  125 
Supreme  Court  .        .        .  127 

Appellate  jurisdiction        .        .    ib. 
In  what  cases  extended  to  de- 
cisions of  state  courts    .        .  133 
Power  of  U.  S.  Courts  to  issue 

process,  &c 134 

Of  judges  to  relieve  by  Habeas 

Corpus 140 

Circuit  Courts  ....  ib. 
Judicial  Districts  .  .  .  ib. 
District  Courts  .        .        .143 

Territorial  Courts     .        .        .144 
State  Courts  and  magistrates    .  147 
See  Courts,  Powers  ok  Gov- 
ernment, &c. 

Jurisdiction. 
See  Courts,  Local  Jurisdic- 
tion, Judicial  Power,  &.c. 
Law. 

Ree  Common  Law,  Supreme 
Law,  &c. 

liAW  OF  Nations. 
Power     to     punish    offences 

against 191 

!l(»w  far  exclusive    .        .        .  194 

Part  of  common  law  of  states  .  ib. 

Ollences  against,  wliat      .        .  195 

How  punishable        .        .        .  ib. 

Policy  of  the  law  .  .  .  ib. 
See  Judicial  Power. 

Laws  impairing  Contracts. 
Prohibited  to  the  states    .        .  278 
I'. »l icy  of  the  restriction    .        .    ib. 


/ 


Pag« 

To  what  contracts  it  extends  279 
Obligation  of  contracts  .  .  ib. 
Judicial  construction  of  .  .  280 
See  Powers  of  Government. 


Legislative  Power. 

General  functions      .        .  .44 

How  organized  in  colonies  .    47 

in  the  states  .    48 


How  vested  by  Const,  of  U.  S.  ^^9  ' 
Constituent  parts  .  .  .62 
Objects  of  its  division  .  .  ib. 
Evils  of  a  single  legislative  body  63 
Examples  of  ...  .  ib. 
Farther  reason  for  division  in 

Government  of  the  U.  S.  .  6i» 
Upon  what  principle  effected  .  66 
Objects  to  which  the  legislative 

power  of  the  U.  S.  extends   .    ib. 
See  Congress,  House  of  Rep- 
resentatives, Senate,  &c. 

Letters  of  Marque. 
See  Marque  and  Reprisal. 

Loans. 
See  Borrowing  Money. 

Local  Jurisdiction. 
Power  of  exclusive  legislation  25b 
To  what  places  it  extends  .  257 
Necessity  of  such  power  .  .  ib. 
In  what  mode  executed  .  .  258 
See  District  of  Columbia,  &c. 

Manufactures. 
See  Domestic  Industry. 

Marque  and  Reprisal. 
Signification  of  .        .        .152 

By  what  authority  granted  .  ib. 
Elfect  of  the  grant    .        .        .    ib. 

In  what  cases  granted      .        .    ib 

Nature  and  necessity  of  power  ib. 
Prohibited  to  states  .  .  .271 
Upon  what  grounds  .        .        .272 

Militia. 
Power  of  regulating  and  calling 

forth 158 

Objects  of  the  power         .        .150 
Extent,  and  cases  for  its  exer- 
cise           *^' 

Effect  of  its  exercise  on  militia  163 

Mode  of  their  organization,  &c.  ib. 

By  whom  "  called  forth"          .  ib 

Who  to  judge  of  exigencies      .  •* 


INDEX. 


Page 
Obligation  of  the  Slates  .  .  164 
Duty  of  state  officers  .  .  ib. 
When    concurrent    power   of 

states  over  militia  ceases       .  165 
When  militia  become  JVational    ib. 

Ministers  (Public). 
See  Ambassadors. 

Money. 
Power  of  coining  .  .  .  226 
Regulating  value  of  coins  .  ib. 
How  rendered  exclusive  .  .  227 
Its  necessity  and  advantage  .  ib. 
Objects  of  rendering  power  ex- 
clusive     ib. 

Why  prohibited  to  the  states   .  272 
See  Borrowing  Money,  Coins 
AND  Coining,  &c. 

Naturalization. 
Power  to  establish  uniform  sys- 
tem          229 

Necessarily  exclusive  .  .  ib. 
Who  may  be  naturalized  .  233 

Mode  of  proceeding  .  .  .  234 
Effect  of  naturalization  .  .  ib. 
See  Aliens,  Citizens,  &c. 

Natural  Rights. 

In  what  they  consist         .        .  50 

Privileges  subordinate  thereto  51 

How  secured  in  colonies  .        .  ib. 

— in  the  states        .  ib. 

Additional  securities  .  .  52 
How  recognised  and  secured  by 

Constitution  of  U.  S.      .        .  53 

Navigation. 
See  Commerce. 

Navy. 
See  Army  and  Navy. 
Nobility. 
See  Titles  of  Nobility. 
Oath  to  support  Constitution. 
3y  whom  to  be  taken        .        .315 
Intention  and  effect   .        .        .  316 
States  cannot  discharge  from    .  317 
See  Powers  of  Government, 
States,  &c. 

Obligation  of  Contracts. 
Sec  Laws  impairing  Contracts. 

Passport.^. 
See  Law  of  Nations,  Powers 
OF  Government,  &c.  .  j 


Patents. 


415 


?»«• 


See  Science. 

Piracy. 
Power  to  define  and  punish  .  19 ) 
Exclusive  in  its  nature  .  .191 
Definition  of  piracy  .  .  .  ji,. 
Mode  of  defining  it  .  .  .  a,'. 
Who  are    deemed   pirates  by 

law  of  nations        .        .        .  193 
Jurisdiction     exercised     over 

them j'j 

How  punished  .  .  .  .'  n,. 
Where  they  may  be  tried  .  ib. 
Acts  declared  piracy  by  Con- 

,  giess j-j. 

Jurisdiction  in  such  cases  .  ib. 
Particular  acts  declared  piracy  193 
How  punished  .        .        .        .    ib. 

Postoffices  and  Postroads. 
Power  to  establish  them  .        .  220 
How  far  exclusive    .        .        .  ^] 
What  power  claimed  as  inci- 
dent         j-j 

How  far  admitted  .  .  .  226 
See  Internal  Lmprovements. 
Powers  of  Government. 
How  distinguished  .  .  .44 
How  to  be  organized  .  *  45 
Consequences  of  uniting  them '  ib. 
How  distributed  in  the  colonies  47 
How  organized  in  the  states  .  48 
How  vested  by  Constitution  of 

U.  S 50 

Extent  of  their  separation  .  ib 
Object  of  their  partial  union  .  ib. 
End  thus  effected  in  Govern- 
ment of  U.S.  .  .  .53 
Legislative  power  .  .  !  59 
Executive  power  .  .*  *  gl 
Judicial  power  .  .  .  no 
Nature  of  powers  vested  in  Gov- 
ernment of  U.  S.  .  .  .  ]50 
Reduced  to  different  classes  .'  ib 
Powers  relative  to  security  from 

foreign  danger        .        .        ,    n, 
Relative  to  war         .        .        .251 

taxation   .        .        .*  ]66 

borrowing  money    .  179 

foreign  intercourse      ib. 

treaties    ,        .        .    n,^ 

ambassadors,  &c.    .    ib. 

piracy       .        .        .190 

— felonies  at  sea         .  193 

offences  against  law 

of  nations        ....  lo» 


416 


INDEX. 


Relative  to  foreign  commerce  .  19G 

slave-trade      .        .  208 

intercourse  between 

the  states        .        .        .        .210 

commerce      among 

the  states        .        .        .        .211 

with  the  Indians       215 

postoffices  and  post- 

roada 220 

coining  money,  &ic.  226 

weights  and  meas- 
ures         227 

punishment  of  coun- 
terfeiting        ....    ib. 

state  records    .        .    ih. 

naturalization .        .  228 

bankruptcy       .        .  235 

miscellaneous     ob- 
jects         241 

science  and  useful 

arts ib. 

local  jurisdiction     .  256 

punishment  of  trea- 
son   259 

■ admission    of    new 

states 262 

territory   and  prop- 
erty          263 

guarantees   to    the 

^tates 264 

amendment  of  Con- 
stitution ....  267 
Implied  and  reserved  powers    .  270 
Restrictions  on  the  states  .  271 

absolute  against    .    ib. 

treaties,  &c.  .        .    ib. 

letters   of  marque 

and  reprisal    ....    ib. 

coining  money       .  272 

bills  of  credit         .  273 

. tender  laws    .        .274 

bills  of  attainder   .  277 

Ex  post  facto  laws    ib. 

laws  impairing  con- 
tracts       ib. 

Qualified  restrictions        .        .  300 
upon  duties  on  im- 
ports, &c ib. 

relative  to  troops  and 

ships  of  war  ....  303 
corni>act  and  agree- 
ments       ib. 

engaging  in  war       .  304 

Auxiliary  jxiwers       .        .        .  305 

.  laws  *'  necessary  and 

proptr"  for  executing  pow- 
»;fr  ....  ib 


Pac< 

Auxiliary  oath  to  si  pport  Con- 
stitution of  US..        .  315 

declaration  of  su- 
preme law      ....  319 

right  of  final  interpre- 
tation       326 

its  ratification  by  the 

people 327 

President  of  United  States. 
Q,ualifications  for  election  .  9ft 
Mode  of  election  .  .  .  ib 
For  what  term  elected  .  .  91 
Provision  for  his  support  .  .  ib. 
When  to  be  declared  elected  by 

electors 9^ 

IIow  appointed  when  no  choice 

by  electors  .  .  .  .93 
Commander-in-chief  .  .  101 
Reprieves  and  pardons  .  .  ib. 
Power  as  to  treaties  .  .  .  102 
Nominates  to  what  offices  .  104 
Power  of  filling  vacancies        .  105 

as  to  removal  from  office    ib, 

as  to  convening  and  ad- 
journing Congress          .        .    ib. 
Duty  with  respect  to  ambassa- 
dors, &c.         ....    ib. 
General  duties  ....    ib. 
Powers  and  duties     .        .        .  106 
Negative  upon  laws,  &c.          .    ib. 
Evidence  of  his  refusal  to  ac- 
cept, or  of  his  resignation      .  108 
How  vacancies  in  office  sup- 
plied        ib. 

Liability  to  impeachment        -.109 
See  Executive  Power. 

Ratification  of  Constitution. 

Provision  for  ratifying  Consti- 
tution       327 

Its  nature  and  eflbcts        .        .  329 

Mode  of  ratification  adopted     .    ib. 

How  ratified  by  people      .        .  330 

Assent  of  states,  how  implied  .    ib. 

Consequences  of  such  ratifica- 
tion          ib. 

See  Secession. 

Representation. 

On  what  principle  founded  In 
government    .        .        .        .44 

How  to  be  applied     .        .        .45 

In  reference  to  powers  of  gov- 
ernment ....    ib. 

As  to  parlies  delegating  them  .    ib. 

Practical  exception    .        .  46 


INDEX. 


417 


Page 

llow  fur  principle  prevailed  in 
colouitil  governments    .        .    47 

How  extended  in  state  consti- 
tutions     48 

How  applied  in  Constitution  of 
U.  S 53 

Representatives. 
Sec  House  of   Representa- 
tives. 

Restrictions  on  States. 
See  Powers  of  Government, 
States,  &c. 

Revenue. 
See  Taxation,  &c. 

Rights. 
See  Natural  Rights. 

Safe  Conducts. 
See  Law  of  Nations,  Powers 
OF  Government,  &c. 

Senate. 

How  constituted         .        .        .72 

On  what  principle  of  represent- 
ation        ib. 

Number  of  senators  .        .        .    ib. 

In  what  manner  they  vote        .    ib. 

By  whom  chosen      .        .        .    ib. 

Manner  of  their  election  .        .     73 

For  what  term  elected      .        .    ib. 

Qualifications  of  senators         .     74 

Powers  exclusive  of  House  of 
Representatives      .        .        .76 

Why  consent  of  Senate  required 
to  treaties       .        .        .        ,78 

Why  associated  with  President 
in  appointing  power       .        .    79 

When  to  choose  Vice  president 
of  U.  S 93 

Sec  Congress,  Legislative 
Power,  &c. 

Science. 
Power  to  promote  its  progress  .  241 
Foundation,  origin,  and  policy  .    ib. 
Mode  in  which  executed  .        .  244 
Objects  of  the  power  .        .    ib. 

By  what  construction  effected  245 
Former  stale  laws  .  .  .  ib. 
Mature  and   extent  of   power 

vested  in  Congress         ,        .  249 
Distinction  between  pro|)erty  of 

authors  and  that  of  inventors   253 
!*rivilcgc.>  secured  to  both  ib. 


Extent  and  limitation  of  slate 

power  in  regard  to  them  .  254 
See  Powers  of  Government. 

Secession. 
Whether    states    may    secede 

from  the  Union  .  .  .  329 
Consequences  of  secession  .330 
See  Powers  of  Government, 

States,  &c. 

Slave-trade. 
Power  of  prohibiting         .        .  208 
How  executed  by  Congress      .  209 
See  Powers  of  Government. 

State  Courts  and  Magistrates 
See  Judicial  Power. 

State  Governments. 
Power  over  militia    .        .        .  165 
Jurisdiction  of  offences  against 

laws  of  nations  .  .  .  193 
Powers  reserved  to  them  .  .  204 
Subordinate  to  Union  .  .  205 
Restricted  as  to  imposts,  &c.  .  206 
commerce        .  207 


Concurrent  power  of  legislation 
in  certain  cases  with  Con- 
gress        

Restrictions  as  to  preventing 
sale  of  imported  articles 

Restrictions  as  to  protecting 
duties 

Regulation  of  internal  com- 
merce       211 

Efiect  of  their  collision  with 
powers  of  Union     .        .        .  213 

Power  in  cases  of  bankruptcy 
and  insolvency 

to  promote  science,  &c. 

of  punishing  treason 

Guarantee  of  Republican  Gov- 
ernment 

Power  as  to  amendment  of  Con  - 
stitution  of  U.  S.     . 

Restrictions  on  their  powers 

Restricted  as  to  war 

Cannot  discharge  individuals 
from  their  allegiance  to  the 
U.  S.       .        .  .        .  317 

Assent  of  State  Governments  to 
Constitution  of  U.S..        .  323 

States  cannot  annul  or  abrogate 
the  Federal  powers        .        .  326 

Sen  Constitutions  (State), 
Powers  of  Government, 
States,  &.c. 

I 


ib. 
ib. 


ib. 


.  235 
241 
259 

,  264 

,  267 
,  271 
,  300 


418 


INDEX. 


Pago 

State  Records. 
Power  of  Congress  in  relation 

to  them -20 

Their  effect  in  other  states       .  229 
Effect  of  judgments  of   State 
Courts  as  evidence  in  other 
states ib. 


States. 

Powers  reserved  to  them  . 

Their  jurisdiction,  how  far  su- 
perseded in  maritime  cases    . 

Preservation  of  harmony  among 

Commerce  among  them  regu- 
lated         

Internal  concerns,  how  far  af- 
fected by  Constitution  of  U.  S. 

Internal  commerce  of 

Proof  and  effect  of  their  records 

Their  powers,  how  affected  by 
collision  with  those  of  Con- 
gress         

Citizens  of  the  several  states    . 

Treason  against  a  state    . 

Admission  of  new  states  . 

Guarantees  to  the  states  . 

Reserved  rights 

Restrictions  on  their  power 

Bound  by  whose  construction 
of  the  Constitution  of  U.  S.  . 

No  discretion  as  to  organizing 
Government  of  the  U.  S. 

Cannot  secede  from  Union 

See  Constitutions  (State), 
Powers  of  Government, 
State  Governments. 

Supreme  Court. 

Judges  recognised  in  Constitu- 
tion, &c.         .        .        .        . 
Tenure  of  their  offices 
Court  created  by  Constitution  . 

organized  by  law    . 

Number  of  judges 
Number  to  form  quorum  . 
Terms  of  the  court    . 
Jurisdiction,  original 

appellate 

-  exclusive 


In  "cases  against  ambassadors, 

&c 

where  a  state  is  a  p:ir  'y 

In  suits  by  a  state 
Concurrent  jurisdiction     . 
In  suits  by  ambassadors    . 
Where  a  stale  is  a  party  . 


Whether  original  jurisdiction  is 
in  all  cases  exclusive     .        .  133  . 

Jurisdiction  as  to  Indians  .    ib. 

Mode  of  exercising  appellate 
jurisdiction     ....    ib. 

Writs  of  error  and  appeals        .    ih. 

In  what  cases  allowed      .        .    ib. 

From  judgments  of  what  courts  1.36 

Restrictions  on  the  right    .        .    ib. 

Proceedings  in  case  of  reversal     ib. 

Regulations  respecting  writs  of 
errors  and  appeals  .        .    ib. 

Judicial  construction  in  regard 
to  them 137 

Exceptions  from  appellate  juris- 
diction     ib 

Appeals  from  state  courts         .    ib. 

Superintending  power  over  in- 
ferior courts    ....  139 

See  Judicial  Power. 

Supreme  Law. 

Declared  by  Constitution  .        .  320 

Effect  of  conflict  between  Fed- 
eral and  state  powers    .        .  322 

Duty  of  courts  in  such  cases     .  324 

States  bound  by  interpretation 
of  Constitution  by  Supreme 
Court  of  the  U.S..        .        .325 

Taxation  and  Taxes. 
Power  of  levying  taxes     .        .  166 
Its  objects  and  purposes    .        .  167 
Its  necessity  and  extent    .        .    ib. 
Where    vested,   and   in   what 

terms ib. 

How  qualified  in  its  exercise  .  168 
Subjects  of  taxation  .  .  .  ib. 
In  what  sense  term  "Taxes" 

used 169 

Different  kinds  of  taxes  .  .  ib. 
Importance    of    distinguishing 

them ib. 

Judicial  construction  of  power   171 
Restrictions  on  states  respect- 
ing it 300 

Judicial  construction  thereof   .  301 
See  Legislative  Power.  Pow- 
ers OF  Government,  &.c. 
Tender  Laws. 
How  iSiir  prohibited  to  states     .  271 
What  allowed  as  legal  tender 

in  payment  of  debts        .        .  272 
See  Powers  of  Government. 

Territorial  Courts. 
Where  established    .        .        .144 


INDEX. 


419 


Page 

Tenure  of  )udges       .        .        .  145 

Courts  there,  how  organized    .  ib. 

Jurisdiction  vested  in  the  sever- 
al courts         ....  ib. 

Special  jurisdiction  of  certain 

territorial  courts     .        .        .  ib. 

Territorial  Regulations. 

Power  of  disposing  of  and  reg- 
ulating territory  and  other 
property  of  the  Union    .        .  262 

Condition  annexed  to  it    .        .  2C3 

Construction  of  power      ,        .    ib. 

See  Powers  of  Government. 

Titles  of  Nobility. 
Power  of  granting,  prohibited 
to  the  states  .        .        .        .271 

Treason. 

Power  to  declare  its  punish- 
ment        259 

Treason  against  U.  S.  defined  .  260 

Evidence  requisite  to  convict    .  261 

Judicial  constructions       .        .    ib. 

Treason  against  a  state     .        .    ib. 

Effect  of  a  confession        .        .    ib. 

Punishment  of  treason  against 
U.  S 262 

Treaties. 

Nature  of  power  to  make         .  180 

To  what  extent  declared  su- 
preme law      ....  183 

How  and  where  the  power  is 
vested ib. 

How  treaties  are  to  be  con- 
strued      188 

How  defined  by  law  of  nations    ib. 

How  regarded  by  courts  of  U.  S.    ib. 

Their  effect  and  operation        .    ib. 

Power  of  Congress  ov  er  them  .  189 


Obligation  of  treaties 
Extent  of  the  power 


Interpretation  of  treaties  .  .  189 
Consequencesof  their  violation  190 
Effect  of  partial  violations  .  ib. 
How  such  effect  prevented  .  ib. 
Power  of  annulling  treaties  .  ib. 
Effect  of  its  exercise  .        .    ib. 

States  restricted  in  regard  to 

them 27] 

Sec  Powers  of  Government, 

President  of  U.  S.,  Senate, 

&c. 

Vice-president  of  U.  S. 

His  powers  in  cases  of  impeach- 
ment        78 

How  chosen,  and  qualifications    90 

For  what  tenh  elected      .        .    91 

How  appointed  in  case  of  no 
choice  by  electors  .        .        .94 

His  duties  as  President  of  Senate    ib. 

When  to  act  as  President  of 
U.  S 95 

Evidence  of  h's  refusal  to  ac- 
cept   ib. 

How  long  he  continues  to  act 
as  President  of  U.  S.      .        .    ib. 

War. 
Whence  right  of  declaring  it 


derived  . 

.  151 

Causes  of  war  . 

.    ib. 

Forms  of  declaring  it 

.    ib. 

Power  of  declaring  it, 

where 

vested     . 

.    ib. 

In  what  mode  declared 

.    ib. 

Effect  of  declaration 

.  L-ia 

"Levying  war" — what 

.  260 

Weights  and  Measures. 
Power  to  fix  standards      .        .  226 
How  far  exclusive     .        .        .  227 

Writs  of  Error. 
See  Supreme  Court. 


THE  EN1> 


A  Course  of  Lectures  on  the  CoxNstitutional  Juris- 
prudence OF  the  United  States,  delivered  annually 
in  Columbia  College,  New- York,  by  William  Al- 
EXANDER  Duer,  LL.D.,  latc  President  of  that  Insti 
tution. 

From  Mr.  Madison. 

"Montpelier,  Sept.  4th,  ISa.?. 
"Dear  Sir— I  have  received  your  letter  of  the  28th  ultimo,  en- 
closing the  outlines  of  your  work  on  the  Constitutional  Jurispru- 
dence of  the  United  States.  The  object  of  the  work  is  certainly 
important  and  well  chosen,  and  the  plan  marked  out  in  the  anal- 
ysis gives  full  scope  to  the  instructive  execution  which  is  anticipa- 
ted. I  am  very  sensible,  sir,  of  the  friendly  respect  which  sug- 
gested my  name  for  the  distinguished  use  made  of  it,  and  am  not 
less  so  of  the  too  partial  terms  which  are  applied  to  it.  I  shall  re- 
ceive, sir,  with  great  thankfulness,  the  promised  volume,  with  the 
outlines  of  which  I  have  been  favoured ;  though  such  is  the  shat- 
tered state  of  my  health,  added  to  the  eighty-three  years  of  my 
age,  that  I  fear  I  may  be  little  able  to  bestow  on  it  all  the  attention 
I  might  wish,  and  doubt  not  it  will  deserve. 

"  With  great  respect  and  cordiai  salutations, 

"James  Madison" 

Frotn  Chief -j-iistice  Marshall. 

"Washington,  Mardt  17,  1834. 

*  Dear  Sir — I  had  the  pleasure  of  receiving,  at  the  commence- 
ment of  the  session  of  the  Supreme  Court,  your  "  Outlines  of  the 
Constitutional  Jurisprudence  of  the  United  States,"  for  which  I 
am  gi-eatly  indebted  to  you. 

"  Tab  pressure  of  official  duty  has  been  such  as  not  to  leave  me 
leisure  enough  to  give  it  that  attentive  perusal  to  which  it  has  the 
fairest  claim.  That  agreeable  task  must  be  deferred  until  my  re- 
turn to  Virginia.  I  have,  however,  passed  rapidly  through  it,  and 
that  rapid  glance  has  eatistied  me  of  the  value  of  the  A^ork,  and 
the  correctness  of  its  principles  and  statements.  I  wish  very  much 
that  this  and  similar  works  could  be  introduced  into  all  our  serni- 
oaHpe  for  pdnratinn      ^r  ^  snv^rnmont  like  ours.  if.  if!  of  thp  last 


importance  that  early  impressions  should  be  just.  Permit  me  I 
thank  you  for  this  flattering  mark  of  your  attention,  and  to  make 
my  acknowledgments  for  the  kind  and  partial  manner  in  which 
you  speak  of  the  Chief-justice  of  the  United  States  in  your  pref 
ace.  With  very  great  respect  and  esteem, 

"  I  am,  sir,  your  ob't, 

"  J.  Marshall." 

From  Edward  Livingston,  late  U.  S.  Minister  to  France. 

"Paris,  Nov.  22d,  1833 
"  My  dear  Sir — I  am  very  much  obhged  to  you  for  your  very 
valuable  little  book.  It  is  a  work  of  great  use,  and  must  attract 
great  attention  in  Europe,  where  all  our  institutions  are  scanned, 
and  their  operation  watched,  from  different  motives,  by  friends  and 
foes  "You  are  now  instructing  a  royal  pupil.  Last  night,  at  the 
Tuileries,  the  Due  d'Orleans  asked  me  many  questions  respecting 
our  Constitution  and  Laws,  and  seemed  so  desirous  of  obtaining 
correct  information,  that  I  told  him  I  had  just  received  from  a  learn- 
ed friend  a  small  volume,  in  which  all  he  required  to  know  could 
be  found,  and  havmg  obtained  permission,  I  sent  him  your  work. 
"  1  am,  dear  sir,  with  high  regard,  your  friend  and  servant, 

"  Edw.  Livingston." 

From  Mons.  de  7'ocqueville. 
*'  Sir — I  have  received  the  work  which  you  had  the  goodness 
to  send  us,  and  will  not  await  the  return  of  M.  de  Beaumont  to  ex- 
press in  his  name,  as  well  as  my  own,  our  gratitude  for  it.  The 
work  you  address  to  us,  sir,  appears  to  me  to  be  eminently  calcu- 
lated for  the  purpose  to  which  you  destine  it.  It  demonstrates, 
with  as  much  clearness  as  precision,  the  Federal  Constitution ; 
and  although  short,  is  not  superficial.  I  have  no  doubt  but  that  it 
would  excite  a  very  great  curiosity  in  France,  if  the  knowledge 
){■  the  English  language  was  more  general  among  us.  For  my 
part,  sir,  I  have  personal  reasons  for  offering  you  my  thanks.  I  am 
occupied  at  present  with  a  work  upon  the  American  Institutions, 
nnd  consider  your  book  one  of  my  best  documents. 

"I  am,  very  respectfully,  sir,  youi  obedient  servant, 
"Alexis  de  Tocqueville.** 
Faris,  November  24th,  1833." 


tl^^illt'sL^'/^   °^  25  CENTS 
TH.s  BOOK  In^^°  DArr"-""^  ^°  "^""N 

WILL  'NCREASE  TO  so  C^v^o"^-  """^  "^NALt!? 
DAY  A)  ^°  '^^NTS  ON  THE  FOURTH 


iitUU 


U.C.BERKELEY  LIBRARIES 


CDMblDb^bfi 


A 


felfJJ" 


